Minnesota lawmakers seek to align fentanyl penalties with heroin to target dealers

In the first few weeks of the pandemic in 2020, Bridgette Norring discovered her oldest son, Devin, lifeless in their Hastings home. 

Devin, who was suffering from migraines and dental pain, had illicitly purchased and taken what he thought was Percocet, or oxycodone, for relief. But the pill contained a lethal dose of fentanyl. 

“These are poisonings,” Norring told lawmakers through tears during a Minnesota Senate Judiciary and Public Safety Committee hearing on Thursday. “The majority of these individuals don’t know what they are taking until it’s too late.”

A bill that would align criminal penalties for fentanyl with heroin never got a vote last legislative session amid failed public safety negotiations between chambers divided on party lines. While Republicans wanted the bill, DFL lawmakers expressed concern that tougher penalties may do more harm than good by incarcerating those who are addicted to opioids and need help.

This year, opposition has evaporated — which is critical to its passage in the DFL-controlled Legislature — and Minnesota lawmakers appear to have reached bipartisan consensus on the bill aiming to stop the spreading use of the illicit drug that has taken the lives of thousands of Minnesotans. Lawmakers say assistance from prosecutors, police and harm reduction advocates in crafting the bill have helped hone its targets to suppliers and dealers, not users.

“This is the third year in a row that I’m aware that this bill has come before you,” Norring said said. “Our law enforcement needs this bill — I can’t even tell you how many times I’ve watched these (dealers) go back out and poison our kids.”

The legislation 

Fentanyl is a synthetic opioid that can be up to 50 times stronger than heroin, according to the Centers for Disease Control and Prevention. Pharmaceutical fentanyl exists and is used to treat severe pain, but illicitly manufactured fentanyl illegally distributed by dealers is behind the recent epidemic in fentanyl-related overdoses. 

It produces a more potent high than other opioids but the lack of quality control in illicit operations means any pill could be a fatal dose, per a fentanyl fact sheet by the Drug Enforcement Agency. Dealers also mix fentanyl with other drugs as a cost cutting measure, which increases the likelihood of overdose.

Opioid-involved overdose deaths have risen substantially in recent years, spiking from 427 deaths statewide in 2019 to 678 the following year. The figure jumped again in 2021 to 978 deaths — a 43% increase from the already growing numbers the year before, according to data compiled by the Minnesota Department of Health.

“It is clear from the available data that fentanyl is far more potent, far more deadly, and sold for far more profit than heroin and yet the threshold quantities needed for criminal prosecution of the sale or possession of heroin are significantly less than those for fentanyl under current Minnesota Law,” the Minnesota County Attorneys Association wrote in a letter to lawmakers earlier this month. 

After the bill failed to make it to the House floor last legislative session, Rep. Dave Baker, a Republican from Willmar whose son, Dan died of a heroin overdose after he became addicted to prescription opioids, said he wanted to carry the bill himself this year and get the ball rolling early. 

“I went to (Public Safety Committee) Chair Kelly Moller this year early and said, ‘Chair Moller, I really want to carry this bill, I want to do it methodically in a bipartisan fashion,’ and she said, ‘It’s yours, you take it,’” he said in an interview. 

Baker said the problem with the current law is that its thresholds are in grams while fentanyl usually comes in pill form. 

This forces law enforcement to send the pills to a lab to determine how many grams they’ve seized, causing backups in requests across the state. And, since such a small amount of fentanyl can be deadly, current thresholds make it difficult to keep distributors behind bars and prevent more overdose deaths. 

The latest version of House File 615 remedies those issues by equating criminal penalties for fentanyl to heroin, and by creating new language that recognizes pills in state law. A person found with 100 or more pills would be charged with first-degree possession, 50 or more would be a second-degree charge and 25 a third-degree charge. 

“We’re trying to find the right number of pills to let the bad guys know if you have more than this many pills on you with the intent to sell or to distribute, and we’ve got evidence that you’ve got lots of cash on you and you might have a handgun, then you are going to prison,” Baker said. 

Concerns and other efforts

Some have expressed concerns about whether increasing penalties would inadvertently harm those with substance abuse disorder, purchasing the pills for their own use. DFL Sen. Judy Seeberger, of Afton, whose nephew died by fentanyl poisoning in 2020, is carrying the companion bill in the Senate. She and Baker have had many conversations with prosecutors as well as harm reduction advocates about how to avoid just that, she said.

Both Baker and Seeberger said they’re confident the new thresholds for criminal charges would prevent locking up someone who is caught with only enough pills for themselves, and for whom being locked up could prevent seeking treatment. 

“We’re really trying to get at the people who sell this poison to our kids and our community members,” she said in an interview. “The idea behind the bill here is not to punish those suffering with addiction, or with substance abuse use disorder, or those who are the users of the product, but to really to go after the people that introduced this poison into our communities.”

In addition to the main part of the legislation, a piece was added during the committee was to require all on-duty peace officers to carry naloxone, a nasal spray medicine that can reverse an opioid overdose. Baker said many departments already require officers to carry the life-saving medicine but adding it to state law serves as a “final reminder” for those last few. 

“We’ve got to get them to carry this stuff because it’s too important not to,” he said. “When they get on a call and they don’t have this medicine with them, they could lose somebody and they will never have a chance to get healthy again if they’re dead.”

Another similar bill making its way through the Legislature would require all Minnesota public school buildings to carry naloxone and allow for any school official to administer it due to spiking teen overdoses. 

Baker said naloxone will likely soon be available at pharmacies to purchase by anyone, but before then he hopes lawmakers will get more bills moving to get the nasal spray in as many settings as possible. 

“We want to get them in higher education places, we want to get them in public spaces, we want to get them in bars and nightclubs, where use may be going on,” Baker said. “That is our ultimate goal.”