Baker pushes more ‘urgency’ in changing fentanyl trafficking law
HAVERHILL — Governor Charlie Baker and top law enforcement officials urged the Legislature Tuesday to make it easier to prosecute traffickers of fentanyl, the ultrapowerful opioid that is often mixed into heroin and plays an increasingly deadly role in Massachusetts’ overdose crisis.
Last year, 1,977 people died from opioid overdoses in Massachusetts, according to preliminary state data. Fentanyl was found in 83 percent of those people after they died.
But because of how a 2015 bill by Attorney General Maura Healey was drafted, prosecutors say it’s extremely difficult to charge someone with fentanyl trafficking.
“The law,” said Essex District Attorney Jonathan W. Blodgett, “as it stands, is unenforceable.”
That means district attorneys end up charging big-time dealers with lesser crimes that carry a lighter punishment, Blodgett and the other law enforcement officials at a Haverhill news conference said.
Before 2015, people caught in Massachusetts with large quantities of fentanyl, which is often mixed with heroin or other substances, could only be charged with possession or possession with the intent to distribute fentanyl, not the more serious crime of trafficking.
The Legislature came together to create a new crime of trafficking fentanyl that carried a punishment of up to 20 years in prison for more than 10 grams of the drug. Baker signed it into law in November 2015.
But the much-celebrated statute created a practical problem for many cops and prosecutors, they said. To charge an alleged criminal with fentanyl trafficking, they often had to show that there were more than 10 grams of fentanyl mixed into a much larger amount of another substance.
For example, if police found someone with 15 grams of a heroin-fentanyl-baking soda mix in the trunk, they couldn’t just test it for the presence of fentanyl to charge him or her with the more serious crime. They would have to test it for purity to be able to charge the person with fentanyl trafficking.
But the State Police lab is not able to test suspected controlled substances for purity, officials said, forcing district attorneys to outsource testing to a private lab, which would likely create an untenable delay for local prosecutors.
The effort backed by law enforcement and Baker would lower the bar for the trafficking fentanyl crime: prosecutors would just have to show that a more-than-10-gram mixture contained the powerful drug, instead of having to prove how much fentanyl it contained. That would be the legal language in line with trafficking statutes for other drugs, they said.
Healey, who was not at the news conferences, backs tweaking the fentanyl law.
“As law enforcement is coming across more fentanyl mixed with other substances in their daily work, our office is supportive of changes to make the law more broadly applicable to help keep this deadly drug out of the hands of those struggling with addiction,” she said in a statement.
Her office emphasized that it has charged about 40 people with fentanyl trafficking under the 2015 law, including several large-scale cases with kilograms of drugs.
Both the Democratic-controlled House and the Senate have passed bills changing the language around fentanyl trafficking, with the House’s language tracking closely to what law enforcement officials are seeking. Those bills are part of a larger package aimed at reforming the state’s criminal justice system.
Because the bills differed, a six-person conference committee of legislators from both branches has been working to hammer out a compromise for months — and their negotiations could stretch on for months more.
In Haverhill, Baker said he understands the Legislature is working on a big criminal justice bill. Still, the governor said he believes that both branches agree the fentanyl issue ought to be addressed with “some degree of urgency.”
“It’s important that it get done quickly,” said Baker, a Republican.
“We agree it’s an important issue,” said Senator William N. Brownsberger, the Senate chairman of the Legislature’s judiciary committee and one of the leaders of the conference panel.
Penalties “for mixtures containing fentanyl are contained in both the House and Senate bills under conference currently. We’re working hard and we expect the conference to be completed soon,” the Belmont Democrat said.
Martin W. Healy, chief legal counsel of the Massachusetts Bar Association, which includes many defense attorneys, said his group understands the outcry from the public and legislators about fentanyl, and acknowledged the substance “is a very difficult drug to monitor and to determine its makeup and purity.”
He said his group is generally supportive of changes to the fentanyl trafficking statute, but wants to see final language before taking a firm position.
And, he said, any changes must ensure that the district attorneys can’t charge small-time users or drug dealers with trafficking just because the substance they might have contains a tiny amount of fentanyl.
Prosecutors shouldn’t “ensnare individuals with an enhanced penalty when they are selling something they think is heroin, but contains just a trace amount of fentanyl,” he said.
After all, he said, a fentanyl trafficking charge, carrying up to 20 years in state prison, must be used only for the most serious dealers.