Disgusted parents taking fentanyl fight to a ballot box near you

A parade of anguished parents clutching portraits of their dead children filed solemnly past the lawmakers. There was Alexandra and Adrian, Jessica and Amanda, Alex and Elijah and Adrianna and so very many more, their smiles forever frozen in two dimensions.

It was March, and these parents beseeched Sacramento lawmakers — for the third time — to pass a new law that might spare others their unbearable pain. This bipartisan bill would have simply required courts to issue warnings to convicted fentanyl dealers that their fake Oxycontin or Xanax et al. pills can kill — and that if they keep selling drugs and someone dies from a fentanyl overdose as a result, they could be prosecuted for homicide.

At the front of the line of bereaved parents, as he so often is, was Matt Capelouto. “Alexandra’s Law,” as it was called, was named after his daughter, who thought she was taking Percocet and died from fentanyl poisoning a few days before Christmas in Temecula in 2019. The bill was freakish in that it had 41 authors and coauthors from both sides of the aisle.  When the Senate public safety committee sent the bill to its demise, again, Capelouto went ballistic.

“This is a disgusting display of a legislative committee holding hostage 40 million people and their safety and security, all in the name of political, ideological gameplay,” he fumed. “What all of us want here is to protect people from the enduring, the never-ending pain of someone being killed by a drug dealer selling poison. And they won’t do it. They won’t even pass a bill that contains a warning — a freaking warning.”

So, Capelouto and company are taking this fight to the ballot box. They’ve filed a proposed ballot initiative with the state attorney general that would do what the legislature would not. Alexandra’s Law is awaiting a title and summary from the AG — a process that has, at times, lent itself to accusations of partisanship — after which would come the signature-gathering phase.

It is not an inexpensive proposition: The costs to gather the 600,000-plus signatures to qualify a measure for the ballot have ranged from $6.5 million to $13.7 million as of late. Capelouto expects signature-gathering to begin in November.

“We can’t get anything effective passed through our state legislature, so basically we’ve been left with no other choice,” he said. “We’ve allowed this to be OK, and it’s not OK.”

Fentanyl poisoning is now the leading cause of death among 18- to 45-year-olds in the United States, surpassing cancer, car accidents, suicides and the devastating impact of COVID-19, the proposed initiative says. Because it can kill instantly, those involved in its illicit production, movement and sales must be issued a warning of its dangers.

Alexandra’s Law would mimic the warnings given to first-time drunk drivers — who, if they drive drunk again and kill someone, can face murder charges.

“Fentanyl is a unique harm, a unique drug, a unique threat,” said Sen. Tom Umberg, D-Santa Ana, former deputy director of the White House Office of National Drug Control Policy, prosecutor with the U.S. Attorney’s office and author of three fentanyl bills snubbed by lawmakers.

“If we can’t get the legislature to employ all the necessary tools to address this crisis, then it’s no wonder voters have taken it into their own hands.”

Former Sen. Pat Bates, who carried myriad bills related to fentanyl and addiction treatment over the years, is on the initiative’s executive committee and is also chair of FentanylSolution.org, a new nonprofit. It sponsored a poll finding that 88% of people want strong prison sentences for fentanyl dealers.

“People from every income level, every ethnic group, want something to be done,” Bates said. “It has captured everybody’s passions. It has certainly captured mine. Young people are dropping like flies from this stuff. Something has to be done.”

The initiative would require judges to tell a person who is convicted of, or who pleads guilty or no contest to, possession of illicit drugs for sale, this:

“You are hereby advised that it is extremely dangerous and deadly to human life to illicitly manufacture, distribute, sell, furnish, administer, or give away any drugs in any form, including real or counterfeit drugs or pills. You can kill someone by engaging in such conduct. All drugs and counterfeit pills are dangerous to human life. These substances alone, or mixed, kill human beings in very small doses. If you illicitly manufacture, distribute, sell, furnish, administer or give away any real counterfeit drugs or pills, and that conduct results in the death of a human being, you could be charged with homicide, up to and including the crime of murder.”

Violation would also mean 10 to 12 years in prison.

Arguments against

Why is a warning acceptable for drunk driving, but not for selling fentanyl? Here’s what opponents say:

By creating another basis for a murder charge, it’s attempting “to resurrect the failed public policy of the past and return to mass incarceration as a solution for societal problems. California recently moved away from imposing draconian punishments on those who never intended to kill another human being by their actions and moved toward a more humane society,” public defenders argued.

Many people in the illegal drug trade are low-level drug users themselves, and they shouldn’t be punished “for the unintended consequences of engaging in illegal narcotic sales and for outcomes that they never intended,” lawmakers argued.

Simply making prosecution easier will not solve the fentanyl problem, will not stop it from crossing the border, will not stop the demand for drugs, senators on the public safety committee argued. The focus should be on causation, prevention and treatment.

Perhaps the most moving argument comes from Aimee Dunkle, whose son Ben, 20, died of what she calls a preventable drug overdose. Ben was with friends, but none called for help. One, in a drug diversion program, was afraid that dialing 911 would land him back in jail. Something like Alexandra’s Law  would make people in that situation more fearful and lead to more unnecessary deaths.

Umberg has addressed that criticism. His fentanyl “Good Samaritan” law, SB 250, was approved by the governor in July. It’s not a crime for someone who, in good faith, seeks medical help for drug-related overdoses to be under the influence or possess drugs for personal use. That information can’t be used against them.

Umberg has stressed that no one would be held liable the first time around — they simply couldn’t plead ignorance the second time around. There’d be no guaranteed convictions. And, of course, this alone isn’t the answer to the fentanyl problem — it’s just one tool in a toolbox that must include prevention, education and treatment.

Capelouto, Alexandra’s father, just doesn’t see how it’s OK to hold second-time drunk drivers responsible if they kill someone, but not second-time fentanyl dealers. “Both act with reckless disregard for human life, and neither is acceptable,” he said.

And lawmakers always want to conflate it with the war on drugs. “This is clearly different,” Capelouto said. “I can agree that many parts of the war on drugs have been a failure. But we’re not talking about locking people up for minor drug infractions here — we’re talking about people who knowingly deal a drug that results in instant death. It’s just not the same.”

Source: Orange County Register