The battle against the opioid epidemic demands urgency. That, alas, isn’t usually the animating impulse when it comes to the Massachusetts Legislature, where lawmaking debate and discussions can easily devolve into dithering and discord — and 11th-hour brinkmanship.
That’s why lawmakers need to interrupt their oh-so-
deliberative effort for a comprehensive rewrite of the state’s criminal justice laws and move with all deliberate speed on Governor Baker’s call for enhanced tools to battle both fentanyl and designer drugs.
Baker wants quick legislative action on two matters. The first is a change in the 2015 law cracking down on trafficking in fentanyl, a far more potent synthetic cousin of heroin that is often mixed with that drug and which was present in 80 percent of overdose deaths in 2017.
Under current law, a drug mixture must contain more than 10 grams of fentanyl before tripping the first of several levels of stricter penalties. That’s different from the way most other illegal drugs are treated. Further, analyzing how much fentanyl is in a particular drug mixture is cumbersome and time consuming for the Massachusetts State Police Crime Laboratory. That, in turn, renders the state’s tough fentanyl-trafficking penalties of limited use to law enforcement.
Baker wants the fentanyl-trafficking sentences to be applicable whenever fentanyl is present in a drug mixture whose combined weight meets the level for longer prison sentences. One can argue about what combined weight(s) should trigger tougher penalties, but the idea of having the fentanyl law kick in whenever the synthetic opioid is present in such a drug mixtures is the right one.
Baker also wants Massachusetts law to piggyback federal determinations when it comes to other synthetic drugs. The problem here is that it’s relatively easy for criminal chemists to alter the composition of such a drug. The new compound wouldn’t be illegal in Massachusetts until a new law passes. That makes for a slow-motion game of whack-a-mole.
The federal government has a greater ability to keep up with the changing compounds and a nimbler way to introduce them into the criminal code, which the Drug Enforcement Administration does through an emergency order. Baker wants the state’s list of illegal substances to change when the federal list (or schedule) does, with the newly added designer drug carrying the same criminal penalties as the most similar banned substance. If the Legislature later chose to change the treatment of that drug, it could do so.
These aren’t particularly controversial measures. Indeed, Senator William Brownsberger, Senate chairman of the Judiciary Committee, says he’s in conceptual agreement with both proposals. The problem is that these two matters are entangled in the larger legislative effort to overhaul the state’s criminal justice system, which is in conference committee.
Brownsberger won’t offer any prediction about when the conference committee will finish its work, but insists the effort is “progressing in a very healthy way.” Maybe, but the conference committee was created more than 100 days ago — and there’s no obvious end in sight. It’s altogether possible that criminal justice reform gets caught up in a legislative logjam that isn’t resolved until the final days of the formal session, which ends on July 31. Or that the effort stalls, meaning action would likely have to wait until 2019.
Given the urgency of the overdose epidemic, that’s too big a risk to take. The Legislature should break these important issues out of the larger criminal justice reform effort and act on them now.