In both of the gubernatorial debates, Republican Gov. Paul LePage has brought up changes to Maine’s fentanyl trafficking laws made under Gov. Janet Mills and the Democrat-controlled state legislature.
On Monday, Mills said it was “just a lie” to suggest that fentanyl trafficking rules were softened under her watch.
Here’s the transcript from that moment during the debate:
LEPAGE: Under her administration, you can have nearly 2,000 doses of fentanyl and that’s considered personal use, it’s not a felony, it’s been decriminalized.
MILLS: That’s just not true. I mean, that is just a lie.
So what’s the truth?
The law in question began as LD 1675, “An Act to Amend Certain Provisions of Maine’s Drug Laws.” The bill was sponsored by Rep. Rachel Talbot-Ross (D-Portland) and passed on a party line vote eased Maine’s fentanyl trafficking laws. Gov. Mills had the opportunity to veto the bill, but she allowed it to become law without her signature.
LD 1675 made several changes to Maine’s drug laws, including evidence and inference rules, which specify when law enforcement can infer from the quantity of drugs in an individual’s possession whether the individual intended to use the possessed drugs personally, furnish them to others, or sell the drugs. Personal use is the lowest level offense, while furnishing the drugs to others is more severe, and “trafficking” the drug, i.e. manufacturing or selling it, is the most severe. In layman’s terms, the law says that if someone is caught with a small amount of a drug, cops can assume he or she is using it personally and not dealing it; if the amount is slightly larger, cops can assume he or she may be sharing the drug with others; and if the amount is high enough, cops can assume he or she intended to sell the drug or was involved in its manufacture or distribution, which means harsher punishments. The difference is misdemeanor charges versus a felony.
So what changes did LD 1675 make to the fentanyl trafficking laws?
The changes in LD 1675 had to do with, among other things, the quantity of fentanyl that will trigger a police officer’s inference that the subject was trafficking the drug, rather than merely furnishing it or using it personally. This was accomplished by striking parts of the statute that defined “trafficking” and “furnishing” and adding new, higher weight thresholds for trafficking and furnishing inferences.
Before LD 1675, the law defined fentanyl trafficking as possession of “2 grams or more of fentanyl powder or 90 individual bags, folds, packages, envelopes or containers of any kind containing fentanyl powder.” And, prior to the changes in LD 1675, Maine law defined “furnishing” as possession of “more than 200 milligrams but less than 2 grams of fentanyl powder or at least 45 but fewer than 90 individual bags, folds, packages, envelopes or containers of any kind containing fentanyl powder.” Here is the Chaptered Statute that passed the House on June 15, 2021 (80-58) and the Senate on June 16, 2021 (20-15). Mills allowed the bill to become law without her signature on July 1, 2021. (You can see the current code with Section E and F repealed here.)
According to the plain letter of the law, LD 1675 increased the amount of fentanyl an individual can carry and still be considered a user rather than a trafficker, which means misdemeanor charges rather than felony charges. Although Mills might not be clear on what LD 1675 meant for Maine’s fentanyl trafficking laws, advocates supporting the bill in 2021 certainly understood the ramifications.
The Maine Civil Liberties Union (MCLU) lobbied in support of the bill, stating on the organization’s website: “This bill would change Maine’s felony drug trafficking law so that it would no longer permit someone to be charged with this crime [trafficking], which is punishable by ten to thirty years in prison, based only on the quantity of drugs they possess.
MCLU continued: Maine’s drug trafficking laws are incredibly harsh compared to the rest of the country, and the threshold amounts to charge a person with felony drug trafficking are extremely low. As a result, many people who possess small amounts of drugs for their own personal use are charged with felonies that carry harsh prison sentences.
The practical consequence of the change means law enforcement officers and prosecutors are no longer allowed to charge an individual with fentanyl trafficking based solely on the quantity of fentanyl in his or her possession if that quantity is less than four grams. In other words, if someone is caught with 5 grams of fentanyl, they can still be charged with trafficking, but 3.9 grams and prosecutors must prove an “intent” to sell based on some other grounds. Previously, possession of any amount over 2 grams would allow prosecutors to pursue trafficking charges. By any measure, this amounts to an easing of Maine’s laws against trafficking in fentanyl, and similar changes were made to the statute concerning heroin.
THE FALSE FENTANYL HEROIN EQUIVALENCE
But the real key to understanding the significance of the change lies in the potency of fentanyl as a recreational drug, compared to heroin or prescription painkillers, and how users consume the drug. Unlike prescription opioids, fentanyl is most commonly mixed with other powders, including other drug substances, rather than consumed by itself. It’s a powerful additive, but it’s rarely consumed on its own because of the difficultly measuring out a precise dose.
According to the federal Centers for Disease Control, fentanyl is 50 times stronger than heroin and 100 times stronger than morphine. Put differently, 4 grams of fentanyl is the equivalent of 200 grams of heroin and 400 grams of morphine. In terms of the new Maine statute, that means an individual who possesses the fentanyl equivalent of 199 grams of heroin cannot be charged with trafficking, but an individual who posses 5 grams heroin can be charged with trafficking. It’s a quirk of the law that predates LD 1675, but one that was upheld and reinforced by the reform.
Whether LePage was correct in his dosage estimates is a complicated subject. The amount of fentanyl in a single recreational dose varies according to the substances purity, the individuals usage history and body type, and a host of other factors. However, LePage is well within the realistic estimates of how many doses are contained in 4 grams of fentanyl. If anything, he underestimates how many salable doses are found in that much fentanyl. According to the federal Drug Enforcement Agency, just 2 milligrams of fentanyl can be enough to kill a human depending on body type and drug use history. The DEA claims that it has encountered pills containing anywhere from .02 to 5.1 milligrams of fentanyl. For lower potency pills, 4 grams of fentanyl could be diluted and manufactured into more than 100,000 salable doses.
Ironically, the Maine law creates a serious risk incentive for Maine’s criminal class to sell the deadlier fentanyl rather than heroin or prescription opioids, because you can possess more individual doses while taking less risk should you get caught by law enforcement.
State Rep. Shelley Rudnicki (R-Fairfield), a member of the Criminal Justice and Public Safety Committee, said she voted against the bill precisely because it eased laws on fentanyl trafficking.
“Through this whole session, it was about decriminalizing drug offenses,” she said.
At the same time the legislature was voting to ease fentanyl trafficking laws, Rudnicki noted, they also considered a bill to impose a $500 of people who let helium balloons go.
“I just remember at the time thinking, these people are crazy,” she said.
LAW ENFORCEMENT’S VIEW ON FENTANYL ENFORCEMENT LAWS
Penobscot County Sheriff Troy Morton talked with The Maine Wire for nearly and hour following the gubernatorial debate on Monday. He said there was no question that LD 1675 constituted an easing of the laws against fentanyl trafficking, but he said the issue was complex and he understood the rationale for the change.
Morton said the threshold for fentanyl trafficking convictions should be decreased, not increased. “But at the same time we don’t want to handicap someone for their entire life,” he said.
Morton agrees with advocates who say a simple mistake shouldn’t become a lifelong burden in the form of a criminal record, but he thinks the legislature could solve this problem without hindering the ability of law enforcement to keep big-time, career traffickers of the streets.
“When I was listening to legislators talk about, hey let’s cut down the amounts – I believed in the principle of not wrapping young kids up in felony charges for drug violations – I understand the thought process,” he said. “But on the flip side, folks are dying from this, you’re killing people. They’re taking advantage of people who are addicted,” he said.
Morton said he would support legislation that allowed the state to expunge drug convictions from criminal records if an offender stays sober for a long enough period of time. That would mitigate the potential for a small offense to have ruinous effects on an individual’s life while preserving the ability to fight drug trafficking.
“I’m a little concerned that if we continue to ease, this problem will only get worse,” he said.
He agreed that the law as it stands currently provides an incentive for drug traffickers to import and sell fentanyl rather than heroin because there is less risk and more reward. Contrary to stereotypes of drug criminals, Morton said many are not users themselves and are savvy businessmen.
“You’d have to be blind to think these people aren’t smart about business,” he said. “They’re coming here because they know the people in the state are suffering from addiction.”
Morton said he heard Gov. Mills talking during the debate about preventing overdose deaths using Narcan, but he said such an approach was insufficient.
“Don’t text and drive. Wear a helmet. Don’t get caught in a scam. We flood the airwaves with preventive awareness. Give me one advertisement about not shooting heroin. There isn’t a single one,” he said.
“There’s, how do you get NARCAN, where is it. That’s important, but that’s not true prevention,” he said. “I do believe it saves lives, so yes you have to do Narcan, but you cannot attack this problem from one end.”
Morton wants to see a robust public advertising campaign aimed at warning people of the dangers of fentanyl use, but he also thinks the state can do a better job providing medical detox centers and mental health support for individuals at high risk of developing substance use disorder. He said the current detox facilities suffer from long waitlists, which is self-defeating when an addict needs urgent care, and so individuals have increasingly relied on hospital emergency rooms.
“To say that there are no mental health services is wrong, but our state is doing a terrible job with mental health services for people suffering from substance use disorder,” he said.
So how did we end up with this equivalence between fentanyl and heroin, an equivalence that has incentivized drug trafficker to sell a more lethal opioid in Maine? Morton thinks lawmakers just did not understand fentanyl well enough.
“I think as this legislation was being prepared during a crazy time, you had covid, a million other things, this drug was changing often. No one knew where it was coming from. I think it was a little bit misunderstood.”
BOTTOM LINE: The 2021 fentanyl trafficking reform law Maine Gov. Janet Mills let become law constituted an easing of fentanyl trafficking laws and, further, created an incentive for drug traffickers to sell fentanyl rather than heroin.