Critics say still penalties for fentanyl crimes would put users, not just dealers, in prosecutors’ sights

A GOP plan to impose stiff prison sentences against those who make and sell fentanyl is more likely to sweep up drug addicts than the dealers it ostensibly seeks to punish, critics said Thursday.

“We’d love to have a discussion about going after dealers and not addicts,” Nathan Wade, a defense attorney and board member for the Arizona Attorneys for Criminal Justice, told the Senate Judiciary Committee. 

Wade and others contended that the strike-everything amendment to House Bill 2253 by Sen. Warren Petersen, R-Gilbert, was written so broadly that it applies to  addicts, not just the dealers who have been flooding Arizona with fentanyl pills. 

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Many of the pills that have been causing issues for Arizonans have been counterfeit opioids or other drugs that use fentanyl as a filler. But because the law is written to include the weight of non-narcotic — and legal — substances in addition to the amount of fentanyl present, Wade and others said that addicts would become easy targets for prosecutors. The proposed felony sentences would kick in for people caught with nine grams of substances that contain fentanyl. 

Additionally, they expressed concern of how the nine-gram limit could impact regular users of the drug, which is often used by those who have chronic pain related to surgeries or cancer. 

Fentanyl is a synthetic opioid that is far stronger than other opioids and has been partially responsible for an increase in the number of drug overdose deaths both nationally and locally. 

Unlike with other illicit substances, there is no threshold in Arizona law for the amount of fentanyl a person can possess to trigger criminal charges for selling or distributing the drug. 

Rebecca Baker, a lobbyist for the Maricopa County Attorney’s Office, told the committee that sentencing for those found with fentanyl has varied because there is no threshold. She said MCAO recommended the nine-gram threshold because it is the same threshold used for methamphetamine and powdered cocaine. 

Fentanyl in Arizona has seen a boom in recent years. Last year, the Scottsdale Police Department and Arizona Attorney General’s Office seized a record 1.7 million fentanyl tablets and over 10 kilograms of fentanyl powder during a single investigation. 

During a two-month period in 2021, the Drug Enforcement Agency in Phoenix seized over 3 million fentanyl pills and 45 kilograms of fentanyl powder, and made 40 arrests. 

The drug has also overtaken heroin for the first time as the most-trafficked drug across the U.S.-Mexico border. In Pima County, health officials have begun to distribute test strips to help residents determine if their drugs contain fentanyl.

“I think we are going to catch the wrong people with this bill,” Wade, a former public defender who has served across Arizona, told senators. He argued that people who are addicted to opioids and other substances will often buy in bulk to feed their addiction. 

K.M. Bell, an attorney representing the ACLU of Arizona, echoed those sentiments and said she was concerned that the bill would result in harsh prison sentences for people with substance abuse disorder and even those with prescriptions. 

Others disagreed and said that it was the right step to helping addicts and helping address the growing fentanyl crisis. 

Jeff Taylor, a member of the Salvation Army Metro Phoenix Advisory board, spoke of how county attorneys plan to use the threshold to go after dealers and manufacturers and not addicts. Taylor said county attorneys intend to use the new law as a leverage tool to get addicts into treatment and to get them to help them to go after the “real fentanyl dealer.” 

Jeff Beaver, a Maricopa County deputy county attorney and the supervisor for MCAO’s drug enforcement bureau, said the average fentanyl pill weighs one-tenth of a gram, so the nine-gram threshold would mean a typical person would be carrying 90 tablets. 

But Bell argued that those who are carrying counterfeit pills that also contain fentanyl would hit the nine-gram threshold much quicker due to the extra weight of the other components. For example, a single hydrocodone pill weighs 6.5 grams on its own. 

Beaver said that it wouldn’t impact personal use due to the amount of fentanyl that would need to be on a person for the threshold to be met. In addition, he said that prosecutors would still have to prove to a jury “without a reasonable doubt” that there was an intent to sell. 

“I think this is a missed opportunity to go after the issues in our criminal code and have an honest conversation about substance use disorder,” Sen. Stephanie Stahl Hamilton, D-Tucson, said before voting no on the measure. 

Petersen said he’s open to changing the threshold to address the concerns that the weight limit will sweep in regular users. 

“I’m not set on the nine grams. I can be persuaded on that and this bill has a ways to go,” Petersen said while explaining his vote. “It is time to put a weight into the statue, fentanyl is killing people… We definitely need to do something to curb this.”

The committee approved the bill on a 5-3 party-line vote. It now moves to the full Senate.