Attorneys concerned with unintended consequences of lifetime prison sentences for fentanyl | News
Sen. Thomas Fisher, author of Legislative Bill 49-37, purposes a life sentence as he takes a hard stance in dealing with persons who may give Fentanyl, a synthetic and dangerous opioid, to a minor, a pregnant person, or someone with mental illness or a “disease or defect” and results in the recipient being harmed or dies from the drug.
Placing harsh penalties on the distribution of fentanyl to kids could leave some unintended members of the community facing a lifetime behind bars, according to attorneys working in the criminal justice system.
A full 20 years in prison on top of any other penalties would be the minimum punishment for giving fentanyl to minors, should Bill 49 become law. And if that child dies — offenders would face a lifetime in prison. The penalty would also apply if the drug is given to a pregnant person or someone who is mentally ill.
“This bill is designed to put us many steps ahead in the war on fentanyl,” main sponsor Sen. Tom Fisher said during a Monday morning public hearing.
Fisher said it’s meant to put the “hammer down” on those who would give the extremely potent drug to a youth.
The proposal has buy-in from the government’s Division of Children’s Wellness. Acting division chief Patricia Mafnas told lawmakers that Child Protective Services often gets referrals for kids who are at risk due to drug use by their care takers.
“In (fiscal year 2022), CPS referrals involving drug use are 14%. In the first six months of (fiscal 2023) CPS referrals are already at 15%, and we anticipate a higher percentage for the remainder of the year,” Mafnas said.
Sen. Thomas Fisher, center, and fellow lawmakers with the 37th Guam Legislature listen to testimony April 3, 2023, on Bill 49-37, a measure that could send a person to prison for life if they give fentanyl to a minor, a pregnant person or someone with mental illness or a “disease or defect” if the recipient is harmed or dies.
Attorneys raise concerns
But attorneys responsible for prosecuting and defending the accused had reservations.
Heather Zona, acting chief prosecutor for the Office of the attorney General, said the bill could have unintended consequences and would make prosecution difficult. Notably, it put harsher penalties on handing out all types of opioids, not just fentanyl, Zona said.
“We can think of the grandfather, for example, who is in bed suffering from stage four cancer, he has morphine or some other high powered opioid, to treat his pain,” Zona said.
Should that grandfather ask his minor to get his medication bottle, “under the (bill), that would be illegal right now,” Zona said. She suggested that lawmakers instead look at Guam’s child abuse law, if they wanted to put stricter penalties on those who put kids at risk.
Bill 49 could also open up constitutional issues, because it would put lengthy sentences on even those who negligently or recklessly expose a child to fentanyl.
“I think that we might end up in the Supreme Court on issues about the appeal of that case. And I’m of the opinion usually try to stay away from the potential appellate problems,” attorney General Doug Moylan said.
attorney John Morrison, deputy director of the Public Defender Service Corporation, said lawmakers should think about who might end up behind bars forever.
“If it were one extreme—the law was designed specifically to prosecute El Chapo or someone—then I think we would all be in agreement that that’s a legitimate concern,” Morrison said.
However, it had become extremely easy to order illicit drugs on the internet, Morrison said. Someone could unintentionally get ahold of a substance tainted with fentanyl from an overseas supplier.
“A 17-year-old might be getting it from their 18-year-old boyfriend or something like that. So I think we need to think carefully about whether or not that’s an outcome that you truly want to see,” Morrison said.
Responding to concerns, Fisher said, “this bill is draconian, and it is draconian by intent. This bill is not in negotiation with those who kill our children.”
He said he looked forward to working with the Office of the attorney General to revise the measure.
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