SMART Policy Podcast
Podcast by the UT SMART Initiative. Host Jeremy Kourvelas speaks with experts from across the recovery ecosystem - representing healthcare, prevention, law enforcement and more - about local, state and federal drug policy to find out what is and isn't working to make this fight against addiction a little easier.
SMART Policy Podcast
Fentanyl Is Now A Felony In Tennessee
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You're listening to the Smart Policy Podcast, a production of the University of Tennessee's Institute for Public Service. Earlier this year, three different bills were filed that would all increase the penalty for possessing fentanyl to a Class B felony. One would accomplish this by reclassifying fentanyl as an agent of chemical warfare, although this bill was returned to the clerk's desk as two complementary pieces of legislation advanced. Those bills, Senate Bill 193 and 1398, the latter of which is known simply as the One Pill Will Kill Act, make a pretty straightforward change. They increased the penalty to a Class B felony without redefining fentanyl. These bills were signed by Governor Lee on May 11th, and for some quick drug policy trivia, this was the same day that he signed the cannabinoid regulation bill, as well as the legislation adding the second wave of opioid settlements to the OAC Trust Fund. In any case, when these bills were passing through the legislature, we at Smart heard a lot of concerns about making fentanyl possession a felony. Specifically, advocates wanted to know if this would lead to more Tennesseans winding up in prison with a lifelong felony charge on the record, just because they had a single pill. So my guest this month is Circuit Court Judge Dwayne Sloane. A strong advocate of drug recovery court and increasing access to medical treatment for addiction, we figured he would be able to give us a good insight into how these bills will impact the lives of Tennessee. All right, thank you for joining me. Thank you for having me. This last legislative session here in Tennessee. Couple of bills passed. Uh one um is uh titled the One Pill Will Kill Act, and the other one is very similar, just affects the Tennessee code in another place. But they effectively do uh largely the same thing in that they add a felony penalty to uh possession of fentanyl or any of its analogs at uh a threshold of 0.5 grams or more. And um just wanted to make sure uh we fully understood what was going on with this.
SPEAKER_01Yeah, so the uh actually what the legislation has done uh was to classify the fentanyl analogs as a class B felony, which really all that does is put it in line um with, for example, cocaine. So that's really the the effect of the legislation. And it's not just a possession of 0.5 grams or more, you still have to have the uh possess it uh with the intent to sell it.
SPEAKER_00Oh, really? Oh okay. And in my cursory review of it, it looked like just simple possession might land somebody with a felony.
SPEAKER_01No, no, I uh it uh it's just uh it's 0.5 grams or more that with but you still have to have the uh intention to sell or deliver it. Okay or manufactur be manufacturing it.
SPEAKER_00Right. And I understand one pill will kill also uh gets into some um uh uh specifications with whether or not a deadly weapon is involved in some commission of a crime.
SPEAKER_01Um that's yeah, if you have a weapon uh in the commission of a felony, uh you know that that's been the law for some time anyway.
SPEAKER_00Right, right. So it does sound like a lot of this is just uh crossing T's and dotting I's, like it's it's really not that much of a fundamental overhaul.
SPEAKER_01Not at all. Not not at all. It just it really just gets uh the fentanyl logs uh kind of in line with the dangerousness of and uh and uh uh no medical purpose uh or like again, using the example of cocaine. Uh of course, now we all know that uh fentanyl um is used for treatment of pain um in say a hospital setting. But really, this is getting at the the different fentanyl analogs that are so dangerous and that are uh so potent and killing people.
SPEAKER_00Right. So schedule one drugs are those with no currently accepted medical use with a high potential for abuse. So that this currently includes heroin, LSD, and for example, marijuana is still Schedule One, even though now more than half of our states have legalized it to some degree. Schedule two drugs also have a high potential of abuse, but there are some uh limited medical uses. And so fentanyl is currently schedule two. Um you've also got Adderall, Oxycodone, uh delauded, methadone, cocaine, so on and so forth. And then there's schedule three, uh, and then there's schedule four and schedule five, and so on and so forth. So this bill is obviously it's a state level, it's not affecting scheduling. That's uh uh a federal level policy. This is affecting how the state of Tennessee prosecutes uh possession of certain drugs. So the purpose of this bill then would to take the analogs, the synthesized one, these new ones that weren't created by pharmaceutical companies, and treat those pretty much exactly like cocaine and heroin, as you said. Is this likely to have a significant difference in sentencing outcomes uh when it comes to uh people prosecuted for drug crimes?
SPEAKER_01The I I I don't see it really making a major difference as far as the uh sentences uh people that are are receiving um for the uh possession with the intent to sell or selling or delivering uh defent line logs. Okay. Well, I think and you hit on something about the half the states legalizing marijuana. It's it's it I always find it really interesting when people say that because the state cannot legalize it, they can decriminalize it. The uh because it's still a violation of federal law.
SPEAKER_00Right. So yeah, we did see in the fiscal bill or the fiscal note for both of these bills that um there is an increase of state expenditures, but it's not an astronomical amount. It's not the amount you would anticipate if there were suddenly a a lot of felony prosecutions. Uh and and again, I know we're speaking very specifically of this legislation, but uh, this really is a situation where we're just clarifying in the law that fentanyl and its analogs should be treated uh like dealing cocaine or uh methamphetamine and some of the other uh drugs we've we've come to associate with um hazardous outcomes.
SPEAKER_01That that's correct. And I'm actually pulling up the let the summary of the legislation right now. Here's the summary. It increases the penalty. Uh this would be Senate Bill 193, House Bill 702, um increases the penalty to a class B felony with a fine up to $100,000 for drug offenses involving 0.5 grams or more, fentanyl, carfentanyl, remifentanyl, alpentanyl, thiofentanyl, or any fentanyl derivative or analog. Uh and uh that uh removes the uh reference to fentanyl derivatives and analogs and names of the act, the one pill will kill act. I mean so again, it's um uh you you still have to prove the intention to uh that the intention to distribute it or manufacture it.
SPEAKER_00This is very helpful and and very promising because I've been hearing a lot of concerns from uh nonprofits and whatnot that this might lead to over-incarceration all over again, uh, more reliance on prisons, more felony charges, and that this would criminalize to a pretty severe extent simple possession. One single pill. To the average person, that doesn't sound like intent to sell, but you're you're saying that you would have to show other evidence of intent to sell to actually get that felony.
SPEAKER_01Yeah, again, it's um simple possession uh is uh it's still going to be simple possession. I mean, you're talking about a consumer, uh there um now the when you're looking at whether somebody is possessing and they have the intent to sell or deliver it, then you you you look at um the circumstances around uh what was going on, right? I mean, so if you possess a certain amount of uh fentanyl and uh you also have um scales, which uh that could be an indicator that you're you have the intent to distribute it, then there's usually other things like um call bogs, uh little book with showing you know the transactions and how much uh sold for different baggies around, different things like that that you're looking at to determine the uh what the state of mind the intention was. But just um but regardless, I mean uh for example, someone could have five or six grams of it and still not have the intention to sell or deliver it. But once you start moving up in weight, um then the weight in and of itself can be enough uh to to prove that someone uh had the intention to sell or deliver.
SPEAKER_00And that that's a very good point. You said five or six grams. That that that is actually an enormous amount of fentanyl, uh, if it's just pure fentanyl we're talking about, being just just such small amounts are a uh a dose, as it were, for lack of a better term. Um that is a concern I did hear from someone that uh the way it's written, that 0.5 grams, uh, and and and that would be the total weight. So the the pill, whatever emulsifying, whatever extra substance is in that pill is also factored into that 0.5 grams. It's not 0.5 grams of the pure fentanyl, which also would be a considerable amount. It's 0.5 grams of the entire substance. I I had heard a concern that the way it's written, it might put in, say, a jury's mind that 0.5 grams is in and of itself one of those extreme amounts that uh can be uh evidence alone of uh intent to sell.
SPEAKER_01No, no, no. It that that's uh and of course uh the state would have to argue that theory, um, however, um it that's pretty easy to to overcome uh by way of a defense if you're you just are possessing uh that small of a weight with no other indication of an intention to uh to distribute it. Uh I I can't imagine a jury finding somebody guilty just because they possessed that much. And a judge, if it actually went to a jury trial, a judge always has the obligation uh to set a jury verdict aside if the uh sitting is 13th juror, if you will, uh to uh not uh affirm that that jury verdict.
SPEAKER_00Okay. Well, that's that's really good to know. Uh Texas, Oklahoma, South Dakota, there have been a number of states that have been prosecuting individuals who haven't what we say in in the minds of the common person might not meet the definition of a drug dealer. Uh, say, for example, you know, two there was a there was a case in Tennessee recently. Three teenage girls, two of them died, one of them did not. And now she's being charged with second-degree murder. Uh, because she did purchase the substance to distribute it to her friends, but it wasn't so much I think a lot of people might think, well, she's not really a drug dealer, she's just so much a user that's sharing. And uh uh this is part of this does seem to be part of that broader trend. I was wondering if you might be able to reflect on that.
SPEAKER_01Yeah, for sure. Uh now that that's uh is is different, of course, than what we're talking about with the new legislation. And but yes, if you uh knowingly uh distribute, which means even deliver, even share with a friend something that you've purchased, and that um because this is such a lethal substance, right, that you knowingly deliver that, even sharing it with a friend, and the person dies, yes, you can be charged and convicted of second-degree murder. Now, in the fourth judicial district and in my course, the um there have been a few people charged with uh second-degree murder, but those um were negotiated down to something much less because of the surrounding circumstances.
SPEAKER_00Is this likely to impact drug courts at all? I I know drug courts very if it don't take every case, uh that uh that some case it depends on the extent of involved crimes, uh things like that, but uh is this likely to um uh have any impact therein's I don't think so.
SPEAKER_01Um it uh because the increased exposure might give us more of an opportunity to uh to be able to serve people through drug recovery courts than uh before. Uh but really I don't anticipate any noticeable difference.
SPEAKER_00Okay, interesting. Um by by expanding capacity, uh what do you mean?
SPEAKER_01Well, I mean expanding our uh not our capacity to serve, but the number of people that um come into drug recovery court um as a part of their plea negotiations, et cetera, because of their increased exposure, they might be more motivated to uh pursue um drug recovery court as opposed to taking their chances of going to uh just serving jail time or going to prison. So it may be more leverage even for uh the district attorney to um use to uh uh motivate someone to actually apply to um drug recovery court. And and I can't see any uh uh drug recovery court excluding somebody uh because it was feminine. I mean, that it was the people we want to help. And typically the people you see prosecuted in state courts for um selling delivering um drugs, uh they're they're typically people that um are supporting their own use. Uh now there are people that are making money or making so much, some more money than what it takes to support their own use. But the the what we think of uh big-time drug dealers, they're not prosecuted in state court anymore and haven't been for a long time, they're prosecuting federal court.
SPEAKER_00Right. And that makes absolute sense, especially with increasing relation to uh cartels, uh uh, which is just an enormous network. Uh that that makes quite a lot of sense and is a very interesting point. So, so a situation, uh, someone is caught, they're looking at a felony charge, they think they might want to try to fight it. No, there's no way I was trying to sell this. Um uh that is a conversation that opens up. It's like, look, you can just go to drug court and we can work with you here, and uh um whatever the situation of the of the case may be, you might be able to avoid jail time or have significantly reduced jail time, so on and so forth.
SPEAKER_01Well, exactly. That's exactly right. And um the uh uh it's and it's the way it always kind of is. I mean, do you do you take your chance and uh uh try the case to a jury, the jury then convicts you and then you end up in prison, uh, or um do you take advantage of this opportunity to get help? And our district attorney they they ought, I think in this state, no, for sure in the fourth judicial district, uh, I mean, you you really are looking to uh determine what that person's true intention was, uh and um and and make and make sure that the charge and ultimately the disposition you know matches up with the reality of what is actually going on.
SPEAKER_00Right, right. And and not to mention if they decide to really fight it, that they might incur some serious legal bills too.
SPEAKER_01Uh but most of them uh are actually you know represented by the public defender's office. But yes, I guess some of them actually do um some of them actually do hire private counsel, but uh it's the the vast majority of the people prosecuted for drug trafficking uh in um Tennessee uh gonna be represented by the public defender's office.
SPEAKER_00Uh makes certain uh quite a lot of sense. Um well this is very enlightening. Um, because uh as I said, I'd heard from uh several different people that they were concerned about how this might be 1992 all over again, uh, but it really doesn't seem that way.
SPEAKER_01Not at all. Not at all. No, it really just in my in my opinion, it gets uh the fentanyl analogs in alignment again, using cocaine for an example, um, and that's that's where it should be.
SPEAKER_00So I I do understand there is another, there's a decades-old law. Uh, I think it was passed under Reagan, um, but this was when novel psychoactive substances first started coming around. And and this, the the intention of this law was to um uh provide a legal scaffolding to prosecute for chemicals that are substantially similar, I think is is literally the phrase the law uses, to known uh uh drugs. Um, but being that these laboratories are cranking out hundreds, if not thousands, of analogs of just slight tweaks and differences, it allows the courts to stay ahead of the chemists in this way. And this law is still being used today to go after dealers. Does this just simply add more clarity? It just makes it a little bit easier. And I I well, and of course, that's a federal law, and this these would be state laws.
SPEAKER_01Well, that's still though a good point that you made uh about uh what the intention of that federal legislation was and what this legislation is doing, because to a point you just made is the analogs are constantly changing, just a small tweak. Um and uh so it it allows it allows us um to stay ahead of that.
SPEAKER_00That's uh it got me thinking because back in 2017, uh under the Trump administration, fentanyl and its analogs were uh temporarily made Schedule I previously, of course, fentanyl was Schedule II, but now fentanyl and its analogs are all schedule one. There have been a couple of bills this year, uh one Democrat sponsored in the Senate. Now that's the Temporary Emergency Scheduling and Testing or Test of Fentanyl Analogs Act, uh, which extends the temporary class-wide scheduling of fentanyl and its analogs to uh for two more years, uh, that temporary schedule one. And it would require the DOJ to conduct scientific and medical evaluation of these substances to encourage research and uh that uh we can study and develop treatments for fentanyl-related substances. Uh, the sponsor, Corey Booker, has actually come out against class-wide scheduling of fentanyl and its analogs. And he points to the uh rising overdose deaths that have continued even after 2017. But then in the House, a Republican-sponsored bill uh called the HALT All Lethal Trafficking or HALT Fentanyl Act, uh, which passed with bipartisan support, uh, would permanently extend the Schedule One status to fentanyl and all of its analogs. Is that a direction you think that might uh be beneficial in general? Is just say, hey, let's go ahead and make this Schedule One and keep it that way, because it's it's clearly killing people.
SPEAKER_01Well, I sure don't have a problem with moving the fentanyl analogs um uh any anything that doesn't have a medical purpose in it, especially the drugs that um uh have the uh lethality potential that these fentanyl analogs do. I have no problem with that whatsoever.
SPEAKER_00That makes sense. I mean a thousand times stronger than morphine and things like that.
SPEAKER_01Yeah, just just you know, this what one of the latest is um uh what well I know the car fentanyl was 10,000 times stronger, but I've heard of some something um uh uh being 50,000 times stronger, but that might be um I might be confusing that with uh xylosine.
SPEAKER_00Well, uh there's there's nidosines, uh I think you might be thinking of, uh and and xylosine is is is certainly a disturbing adulterant that uh extends the the high of fentanyl, for example, even though it's it's an animal uh drug. I like how you clarified too, though, that we're talking about these analogs, these novel substances that are um uh different than old school pharmaceutical fentanyl, create the which was first created what like 70 years ago by Jansen, is used in surgeries. Uh uh that that's that's just a different situation here than what's being synthesized in labs and no one knows what's in it.
SPEAKER_01And absolutely. And uh you made a point earlier about um you know a lot of people really don't know that fentanyl is in the product, but uh you know because I I I try to help a lot of people that are uh in um recovery uh and um you know drug trafficking prosecution officers, but uh it it a lot of people really are chasing fentanyl and they know it's uh they they a lot of them know it's not heroin, uh they know it's a fentanyl analog, but they go after it even knowing how lethal it is because of its potency.
SPEAKER_00Right. That makes a lot of sense. I I I we've heard from uh uh Dr. Lloyd has talked about this, about uh how high his daily dose got and how he was just so uh before he had gone into recovery himself all those years ago, uh every day's struggle was just trying to maintain um that daily dose because the tolerance was so high he wouldn't go dope sick. And um this even ties back into xylosine. I've heard that because fentanyl has such a quick half life in the body that it's only a few hours before you start going into withdrawals, even though it's so potent. So that's why people are getting xylosine. Uh, but of course, uh that doesn't really address the underlying issue, and so they wake up from that high and they're already in withdrawals and so on and so forth. forth. Right. But yeah, that's that's that is an important point too. That yes, there's there's definitely quite a few people unknowingly taking it, but the the very act of yeah seeking it out just to maintain that.
SPEAKER_01Yeah for sure. And and I've been doing this work for a a long time and um I I've never uh seen it this bad out on the streets. Uh the number uh locally of uh our our overdose deaths are have just continued to increase um is it it is it is really bad out there. Uh I mean it's uh uh people just need to know you you can't assume that uh uh fentanyl is not in anything you buy uh cocaine methamphetamine heroin uh even uh we've heard stories about marijuana uh containing it because it's being added to um to increase the potency and the high I've heard it said if if it doesn't come from a pharmacist in a bottle uh then you just really don't know what are your thoughts on uh recent efforts to improve access to consumer end testing uh like the the fentanyl test strips and now there's there's um uh plans to get xylosine test strips out there well i'm i'm I'm very much for increased access for the the test strips um the um however you know I do understand um the logic of people that are opposed to it because it might give you a false sense of security uh and in consuming if uh especially if it's not accurate if the read's not accurate but uh I mean at the end of the day though I fall on the side of increasing access to um uh test trips I think we're gonna save more lives that way than than we lose.
SPEAKER_00I agree completely. Are there any final thoughts? No, no but um uh sure enjoyed the conversation hope it is uh beneficial thank you so much judge I really appreciate it all right always good to see you brother take care have a good day by more episodes on in depth discussions on Tennessee policies related to substance use disorder by a range of local experts please subscribe to us wherever you get podcasts and visit our website at smart.tenessee.edu. I'm Jeremy Corvellis. Thank you for listening and see you next month.