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Kentucky Senate passes bill that could make heroin traffickers face homicide charges

Published 10:19 am Friday, January 17, 2014

The Senate passed a bill Thursday to combat the state’s growing heroin problem, though not without questions during a committee hearing earlier in the day on certain provisions’ constitutionality.

Senate Bill 5 passed 36-0 with Sen. Perry Clark, D-Louisville, passing.

SB 5 would require those convicted of trafficking more than 4 grams of heroin or methamphetamine to serve at least 50 percent of their prison sentence before becoming eligible for probation, parole or early release. Traffickers could be charged with homicide in cases of overdose deaths, and the bill would require coroners to report overdoses caused by Schedule I drugs, such as heroin.

“The bill targets two different groups: the trafficker, who needs to be run out of Kentucky or locked up; and the addict, who has broken the law but has created their own personal prison of addiction that is worse than any jail this state could design and needs treatment,” the bill’s sponsor, Senate President Pro Tem Katie Stine, said.

The legislation would allow the Department of Medicaid Services to expand treatment options and direct a quarter of savings realized through a corrections reform bill passed in 2011 to supplement the Kentucky Agency for Substance Abuse Policy.

SB 5 would also allow police officers and emergency responders to carry and administer naloxone, a drug used to counter opiate overdoses; grant immunity from drug possession charges for those seeking help for someone overdosing; and grant immunity from paraphernalia charges for those who alert law enforcement of any hypodermic needles or sharp objects in their possession before a search. Some could be given leniency for helping prosecute other drug crimes.

Kentucky Office of Drug Control Police Executive Director Van Ingram said the state has had problems with opioid addiction for years, and the heroin trend has evolved from opiate-based painkillers such as OxyContin and Opana. The numbers of heroin overdoses and confiscations have risen dramatically in recent years, he said.

“Senate Bill 5, I think, takes a broad view and it hits on a number of things, all aimed at reducing the availability of heroin, educating our citizens about heroin and some harm reduction things to try to keep people alive,” Ingram said during testimony before the Senate Judiciary Committee. 

“We can’t get people into treatment and we can’t get them leading productive lives if they’re gone.”

Supporters of the bill cross party lines with Stine, R-Southgate, Rep. John Tilley, D-Hopkinsville, and Democratic Attorney General Jack Conway backing the measure.

The heroin issue extends beyond northern Kentucky, which supporters of SB 5 spotlight as an area of the state wracked by heroin addiction because of its close proximity to Cincinnati. Clay Mason, public safety commissioner for Lexington-Fayette Urban County Government, said central Kentucky has seen a rise in heroin abuse in recent years.

“This is not a back alley drug situation from the movies of the late ’60s and early ’70s. This is anybody’s problem,” Mason told the committee. “There are many, many people who, as we’ve already heard, have gone from a pill prescription addiction problem and now rolling into heroin for a multitude of reasons — price and availability.”

Ernie Lewis, a lobbyist for the Kentucky Association of Criminal Defense Lawyers, raised concerns about the constitutionality of certain parts of SB 5, specifically in prosecuting dealers of Schedule I substances whose drugs cause overdose deaths.

Offenders convicted of homicide or fetal homicide where the victim dies from such an overdose would not be eligible for release until serving at least half his or her sentence, under SB 5.

Lewis specifically pointed to a provision eliminating the defense that victims contributed to their deaths by willingly ingesting substances, sometimes more than the Schedule I drugs at the center of SB 5.

“Many overdose deaths occur when a person combines drugs; they combine that cocktail, unfortunately,” he said. “They may take cocaine, they may take Xanax, they may take other benzos (benzodiazepine, a psychoactive drug) or opioids. Sometimes the defendant is not even aware of that because that might have occurred earlier, because when you’re sick, you take whatever’s available to you.

“… Foreseeability has to do with the awareness of a risk. The prosecution has to prove awareness of a risk, and this provision says as a matter of law, the risk is there, we’re going to presume it, and they can’t do that under the due process of laws.”

SB 5 is meant to clarify an issue raised in a 2000 Kentucky Supreme Court decision overturning a reckless homicide conviction in which the victim died of an overdose from a mixture of cocaine and heroin, Stine and Tilley said.

“It seems to me that all that provision is doing is eliminating the ‘blame the victim’ defense, and I think we can all agree that’s not a bad thing.”