June 12, 2023 at 11:55 a.m.
Drug overdose bill passes legislature, heads to Evers
Addressing the fentanyl crisis, or punishing addiction?
The bill, authored by Rep. Scott Allen (R-Waukesha) and Sen. Van Wanggaard (R-Racine), had already passed the Senate.
Under current law, according to an analysis by the Legislative Reference Bureau (LRB), it is a Class C felony to cause the death of another human being by manufacture, distribution, or delivery of, or by administering or assisting in administering, certain schedule I or schedule II controlled substances, controlled substance analogs, or ketamine or flunitrazepam. A Class C felony is punishable by a fine of up to $100,000 or imprisonment for up to 40 years, or both.
Under this bill, those crimes would be reclassified as Class B felonies, which are punishable by imprisonment for up to 60 years.
Allen says the bill makes sense because it would ensure that the penalty for causing death by the manufacture, distribution, or delivery of a controlled substance is the same as for other first-degree reckless homicides. Instead of a fine of up to $100,000 or imprisonment, the bill requires mandatory imprisonment, though the length of sentence would be a matter of judicial discretion.
"The loss of over a thousand loved ones every year in Wisconsin is too high of a price to pay," Allen said. "Those who willingly distribute a deadly drug need to be held accountable. The bill addresses more than fentanyl, because we needed a law that will stay ahead of the ever-evolving synthetic drug industry."
Allen said the bill has been supported by law enforcement and families of those who have lost loved ones to fentanyl.
"Fentanyl poisoning is murder," he said. "I hope that Gov. Evers signs this bipartisan bill into law as another step in solving the fentanyl crisis."
In testimony during a hearing on the bill, Wanggaard, the other lead author, said the number of overdose deaths involving opioids has risen due to the skyrocketing availability of synthetic opioids, mainly fentanyl.
"Sadly, a large number of the people that overdose on fentanyl have no idea that they are actually ingesting it," Wanggaard said. "This is because not only are illegal drugs like cocaine and heroin being laced with fentanyl, but counterfeit prescription drugs like Xanax and Oxycodone are as well."
Just a trace amount of fentanyl is enough to kill a person, Wanggaard testified.
"I've been asked why a drug dealer would want to lace their drugs with fentanyl, and the answer is simple, it is extremely addicting," he said. "By adding fentanyl to their drugs, they create a dependency in their users, who will continue to come back to them. Of course, these drug dealers are not scientists or pharmacists and they make mistakes when they lace their drugs, with potentially deadly consequences for their clients."
Drug dealers know fentanyl can kill, but they would rather risk their client's lives to make a quick buck, Wanggaard said.
Democrats say it's
counterproductive
Both Democrats and the American Civil Liberties Union (ACLU) have decried the measure.
Instead of punitive legislation, Democratic Rep. Darrin Madison of Milwaukee said lawmakers need to move toward a harm reduction model that prioritizes the preservation of life over punitive consequences.
"Under Wisconsin's limited Good Samaritan Law, reckless homicide charges do not apply, resulting in a situation where well-meaning individuals can now be sentenced to 60 years in prison for using drugs with a person who overdoses," Madison said. "[The bill] does not solely focus on high level drug dealers or fentanyl. It applies to a broad range of schedule 1 and 2 drugs and provides a perverse incentive to leave a friend, family, or community member to die rather than call life-saving medical care."
Rep. Francesca Hong (D-Madison) said the bill does not address the root causes of drug overdose but instead perpetuates the very issues that have created such a crisis in the first place.
"The best solutions involve rehabilitation and prevention," Hong said. "Only in those ways can we reduce the demand for illicit drugs and prevent future tragedies from occurring."
And Rep. Ryan Clancy (D-Milwaukee) called current efforts "madness."
"We know the massive monetary and social costs of continuing to try to incarcerate ourselves out of this epidemic," Clancy said. "We know that there is no data to suggest that adding more years on to a sentence helps our drug problem, or that it functions as a deterrent."
Clancy said that, in the prior five legislative sessions, the Assembly had passed 144 items that increased or created new crimes.
"If we're serious about ending our drug problems, we need to invest in programs for people who we incarcerate, and to take preventative measures that stop drug use in the first place," he said. "This means investing in mental health, broad investments in education and other initiatives that Republicans stripped from the governor's recommended budget, like medication assisted treatment and treatment capacity expansion."
Severing more people from the community for longer after having failed them, then providing them insufficient treatment and resources so that they return to the same situation they came from, often jobless and worse off than before, is not "tough on crime," Clancy said: "It's tough on our community."
The ACLU of Wisconsin also opposed the legislation.
"Under Wisconsin's Len Bias law [laws that hold individuals responsible for giving someone a drug that leads to their death], anyone who provides drugs to someone who dies of an overdose can be charged with murder," Jon McCray Jones, a policy analyst for the ACLU of Wisconsin, said. "This means that even a friend, family member, or partner of someone who died after using drugs could be charged with homicide if it was their drugs that were consumed."
Far from being exclusively reserved for drug kingpins or major dealers, Jones said, the law does not account for the fact that people close to each other routinely share and use drugs together, and that tragic, unanticipated overdoses can happen.
"While reducing rates of overdose deaths is certainly an urgent priority, SB 101 won't alleviate the crisis," he said. "An extensive body of research - as well as our own lived experiences -tells us that punitive drug laws don't reduce drug use, substance abuse disorder, or overdoses. In fact, Len Bias laws actually make it less likely that someone will seek help for someone suffering an overdose because they fear potential prosecution."
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