Trafficking penalties remain key roadblock in heroin talks as conference committee readies for Thursday meeting

03/18/2015 09:28 PM

Set to meet anew Thursday, lawmakers on a conference committee to address the state’s heroin epidemic will tussle over a familiar stumbling block as they work toward a compromise next week.

The committee on Senate Bill 192 is scheduled to meet 10 a.m. Thursday to begin formal discussions on a final anti-heroin product, and differences between the House’s and Senate’s enforcement provisions will take center stage, according to interviews on Wednesday with the chairmen of the chambers’ judiciary committees.

The Senate previously has proposed making heroin trafficking a class C felony, punishable by 5 to 10 years imprisonment, regardless of amount and requiring convicted heroin dealers serve at least half their sentences before release.

The House-passed version of SB 192, meanwhile, would create a new class B felony for trafficking a kilogram or more of heroin, retain the 2-gram threshold for class D felony trafficking charges under current law and force those caught selling 60 grams or more to serve at least half their sentences before release.

Sen. Whitney Westerfield says he has been working on a compromise on penalties that differentiate between addicts and traffickers in hopes of breaking the impasse.

“If they traffic below (2 grams) but are not addicts, it bothers me that they get hit less harshly when they were trafficking all the same,” Westerfield, R-Hopkinsville, said in a phone interview. “There are people who deal in just under 2 grams specifically to take advantage of the less serious time. I don’t like that.

“… I understand what (Rep. John Tilley is) trying to get at. You want to make sure that the people who are selling to support a habit, whatever the controlled substance is, they’re not punished at the same level that one that’s just doing it commercially.”

Tilley said he and the House conferees are willing to listen to the Senate’s offering, but they must see evidence that the policy will work.

House Speaker Greg Stumbo’s office, in announcing the conference committee meeting, also included letters from House Democrats on the panel, the Catholic Conference of Kentucky dated March 9 and the Texas Public Policy Foundation’s Right on Crime initiative dated March 13.

Mark Levin, policy director of Right on Crime, warns against longer prison terms and notes in the letter that conservative heavyweights like former Florida Gov. Jeb Bush, former Texas Gov. Rick Perry, former U.S. House Speaker Newt Gingrich have signed the group’s statement of principles. Tilley said the group has endorsed the General Assembly’s previous efforts at penal and juvenile justice reforms in 2011 and 2014, respectively.

Tilley, D-Hopkinsville, said with enhancements and persistent felony offender provisions, Kentucky has some of the toughest drug penalties in the country. First-time heroin dealers caught selling less than 2 grams in Kentucky face up to five years in jail whereas in Ohio, those caught dealing less than 5 grams of the drug face up to three years, he said.

“There is only one time that a trafficker can get a class D felony,” he said. “The very next time the charge will be at the C level or above.”

He continued, “The typical legislative response at both the state and federal level has been to drastically increase penalties, and that has not curbed drug use, drug abuse or associated drug crime. If it had, we would see the evidence, and again decades worth of evidence has shown that it does not help the problem.”

Other provisions in the bill remain in flux, although lawmakers are near compromises for pieces on naloxone prescriptions and “Good Samaritan” protections. Directing funds to treatment programs also is unclear.

Tilley is optimistic that the optional needle-exchange programs he’s championed have enough support in the Senate for inclusion in the compromise bill. That provision, he said, will not only clear public places of used needles, but also cut intravenous drug abuse and the spread of blood-borne illnesses like hepatitis C among users.

“My compliments to the Senate and anyone who has listened and is now advocating for a needle exchange possibility in Kentucky because to me it’s the appropriate public-health response to a public-health crisis,” he said.

The path might not be so clear in the Senate, however.

“I can tell you where some sit and I can tell you that some are OK with it, some are absolutely opposed to it,” Westerfield said. “There are some that have turned their minds around on it and changed their minds because of what they’ve heard about it, and probably in both directions — they used to be for it and then now aren’t and vice versa.”

And after settling one concern over gubernatorial politics, another has risen in House Majority Caucus Chairwoman Sannie Overly’s floor amendment appropriating $10 million next fiscal year for various treatment approaches.

Overly, D-Paris, is running for lieutenant governor on a ticket with Attorney General Jack Conway and could face Sen. Chris McDaniel, also a candidate for lieutenant governor, if he and Agriculture Commissioner James Comer survive a four-way Republican primary May 19. McDaniel sponsored Senate Bill 5, and Tilley has said politics played a role in moving forward with SB 192.

Some have aired similar concerns about Overly sponsoring the amendment, Tilley said, but “the need to infuse much-needed programs with additional resources trumps any of that.”

Westerfield said his primary concern is determining a funding source for the proposal.

Both judiciary chairmen are optimistic compromise can be reached before the General Assembly adjourns sine die, scheduled for March 24. Tilley called passing a heroin bill “critical” this session.

But just how far reaching that resolution will be remains to be seen.

“People have died in the ensuing years as a result of the inaction that we’ve experienced on this issue in Frankfort, and so to see us getting even this close, I can walk away with some of the things we’ve already got consensus on and be satisfied,” Westerfield said.

Gov. Steve Beshear, speaking to reporters after a Capitol news conference Tuesday, said he’s “confident” a heroin bill will reach his desk this session, but he called a question on whether he would call a special session if lawmakers fail to pass anti-heroin legislation “premature.”

“It’s obviously a huge epidemic in Kentucky and we have to address it,” Beshear said.

Senate President Robert Stivers, co-chairman of the conference committee with Tilley, was unavailable on Wednesday but scheduled a 9:30 a.m. press conference before Thursday’s meeting.

Kevin Wheatley

Kevin Wheatley is a reporter for Pure Politics. He joined cn|2 in September 2014 after five years at The State Journal in Frankfort, where he covered Kentucky government and politics. You can reach him at kevin.wheatley@charter.com or 502-792-1135 and follow him on Twitter at @KWheatley_cn2.

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