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By Sarah Michels

Bluegrasslive.com

During her primary campaign for governor, Kelly Craft promised to go harder on drug dealers, punishing those who dealt drugs leading to an overdose death with a murder charge.

Now, while Craft is out of the running, state legislators are considering a potential bill to do just that.

During the 2022 legislative session, Reps. Deanna Frazier Gordon, R-Richmond, and Brandon Reed, R-Hodgenville, sponsored House Bill 388, which would have added to the current state law definition of murder.

It would have made anyone who “unlawfully administers, delivers, distributes, or sells a controlled substance” to another person whose death “is caused by the injection, inhalation, absorption, or ingestion of any amount of that controlled substance” eligible for a murder charge.

The bill was introduced in the Kentucky House of Representatives, but never got assigned a committee.

Gordon said it was meant as a “conversation starter” during her testimony at the Interim Joint Committee on Judiciary Thursday in Frankfort.

“We’re not making good progress in the issues of opioid abuse and drug trafficking, and 20 other states in some way have enhanced their charges dealing in this area,” she told the panel of state legislators from both chambers.

Rep. John Blanton, R-Salyersville, Richmond Police Department Chief Rodney Richardson and Major Josh Hale joined Gordon in defending the legislation.

“Is this going to be the piece of legislation, the law that goes into effect that’s going to solve our problem? No, it’s another tool,” Blanton said.

“We’re not going to arrest our way out of this problem, but it is a part of controlling and trying to bring things down, just as getting people into recovery centers and helping to get those mental health issues that they need under control.”

Under current Kentucky law, those who distribute drugs causing an overdose can be charged with second degree manslaughter, which carries a sentence of five to 10 years.

Richardson emphasized that those charged typically do not serve the entire five years due to early parole and release opportunities.

Madison County was the first to actively enforce this law, Richardson said. From 2020 to 2022, he said that 15 people had been charged with misdemeanors under the law, but only two have pleaded guilty and the others are still pending or have been dismissed by the prosecutor.

“Parents are upset,” Richardson said. “… I can only imagine how the parents feel when we tell them that the individual that caused their baby’s death can only be charged with manslaughter, not murder. They just can’t comprehend why it is different.”

When asked why so many cases had been dismissed, Richardson said that proving renumeration, or payment between drug dealers and the users who died from overdoses, was often difficult.

The variety of social media avenues for arranging payments and the involvement of third parties in many cases contribute to this difficulty, he said.

The committee co-chair, Rep. Daniel Elliott, R-Danville, pointed out that the current proposed legislation said little to nothing about what accomplice liability exists in those cases where a third party is involved in the exchange.

Gordon said that is something her team will be looking into further.

B. Scott West, deputy public advocate for the Kentucky Department of Public Advocacy, testified against the proposed legislation.

He argued that research has shown laws that increase the severity of drug dealer punishment are counterproductive, and will not “curb the scourge of overdose deaths that we have in this state.”

West cited a Drug Policy Alliance report that showed the laws in 20 states did not significantly decrease overdose deaths or deter drug use and sales, but did make people more reluctant to seek life-saving medical assistance for people who have overdosed due to fear of being potentially charged with murder.

So-called Good Samaritan laws allow people to call 911 to bring life-saving treatment to people experiencing overdoses without being held culpable for drug possession or use themselves.

West and the Drug Policy Alliance argue that the proposed legislation would “chill” people from taking advantage of that law.

“Supply follows demand, so the supply chain for illegal substances is not eliminated because a single seller is incarcerated, whether for drug-induced homicide or otherwise,” the report states. “Rather, the only effect of imprisoning a drug seller is to open the market for another one. Research consistently shows that neither increased arrests nor increased severity of criminal punishment for drug law violations results in less use (demand) or sales (supply). In other words, punitive sentences for drug offenses have no deterrent effect.”

West used the example of a college party where kids are passing around a marijuana joint that is unknowingly laced with fentanyl.

Technically, if one kid passes the joint to another, and that person happens to get a fatal concentration of fentanyl in their dose, the first kid could be charged with murder under the language of the proposed law.

“You heard the word transfer, which is another way of saying deliver,” he said. “And what you’re saying is anybody who passes something to someone else can be automatically absolutely viable for murder without having the slightest idea that we’re not just gonna kill this person.” Blanton said that would not be the intended target of the bill, and law enforcement would be unlikely to prosecute in that case, although it is a possibility.

West argued that not prosecuting in all cases wouldn’t be an even-handed application of the law. Hale said that the proposed legislation won’t solve the drug crisis, but it will help. “I don’t know that we’ll ever win the fight, but I don’t think it’s ever one that we can stop fighting,” he said.