Enhanced fentanyl penalties stalled in Legislature

A proposal to enhance penalties for people who provide fentanyl that injures or kills someone got held up Monday in the Legislature.

The proposal, LB137, would increase the penalty for providing someone with fentanyl if that person died or was seriously injured.

Supporters say the bill is a needed response to the opioid epidemic, while opponents say it would hurt people and contribute to prison overcrowding.

Sen. Carolyn Bosn, lead sponsor of the bill, said she supports it on behalf of families who lost loved ones.

“We cannot ignore the fact that drug dealers are killing citizens in this state,” Bosn said.

But Sen. Justin Wayne, leading the filibuster against the bill, said it would have unintended negative consequences.

“This is being portrayed as going after the drug dealers. It's not that either -- it's also going after people who are giving pills away, like friends, families and others who might say, ‘Hey, your back hurts. Here goes this pill to help you out.’ They don't even have to know that it has fentanyl in it,” Wayne said.

Wayne also said he wanted to amend the bill to include a proposal by Sen. Megan Hunt that would let cities authorize needle exchange programs. Gov. Jim Pillen vetoed that proposal, and a legislative attempt to override the veto got only 27 votes. That wasn’t enough to override the veto, but it would be enough to amend another bill.

Bosn said people who provide fentanyl-laced drugs should be held accountable, even if the people they provided it too were also breaking the law.

“If we tell someone we're selling them a Percocet, as illegal as that is and as disappointing as that is that someone is using drugs illegally, the reality is, you are not being overdosed on the thing you thought you were taking. You're being poisoned with something else that is cheap to make and quick to get an addiction to. And that's flashy for drug dealers,” she said.

Sen. Terrell McKinney, who’s Black, said the way the criminal justice system works, enhancing drug penalties disproportionately affects minorities – people who look like him or other senators with Hispanic, African American, Philipino, or native American heritage.

“All these crime enhancements have negatively impacted minority groups in this state… This will negatively impact people that look like me, people that look like Senator Vargas, Senator Wayne, Senator Sanders, Senator Brewer. It will negatively impact people…As much as we want to say there's equal justice in the law, that is not true. And it's not done that way,” McKinney said.

Sen. John Lowe supported the bill, while linking it to international problems.

“That seems to be our problem right now, is all this fentanyl that's crossing our border that is originating most likely in China, and destroying our country from within. They don't need to spend all that money on military when we destroy our own children,” Lowe said.

After two hours of the four hours elapsed before supporters could move to cut off debate and vote, Bosn asked that it be pulled from the agenda. In an interview later, she said she did so in hopes of reaching a compromise with opponents. Bosn said that might include some version of Hunt’s needle exchange bill.

“I think there's some tightening of the language that if it were to come back, it would certainly, I think, in order to have the governor's support and some of my other colleagues, to have some additional parameters put on maybe but it's not a hard no never for me,” she said.

Hunt said she’s already filed an amendment to specify that needle exchange programs could not serve people under 18 years old.

In other action, lawmakers amended a bill, LB894, about who can serve as county sheriff to say that DACA recipients – people brought to the country illegally when they were children – cannot serve as law enforcement officials. The move reversed an amendment adopted two weeks ago. Sen. Teresa Ibach, who initially supported allowing DACA recipients in law enforcement, said she reversed herself in part because it would be unfair to other non-citizens, like those with green cards.

“This amendment also raises questions when it comes to public retirement plans in Nebraska. I don't know what would happen if individuals with DACA status were to contribute to these plans only to have their legal status and therefore law enforcement certification taken away by future Congress or Supreme Court decision,” Ibach said.

Sen. Mike Jacobson, who also switched his vote, said DACA recipients could not carry guns, although other senators said that could be corrected by state law. Jacobson also said many members of the public, often referred to as the “second house” of Nebraska’s one- house Legislature, opposed allowing DACA recipients in law enforcement.

“The second house has made it abundantly clear to me that they don't like this amendment,” Jacobson said.

But Jacobson added that the state needs immigrants in its workforce.

“Without legal immigration, including green cards, we do not have an adequate workforce in this country. We don't have an adequate workforce in this country with those (in that) status. So I'm supportive of green cards and anyone who's here on a legal status that's permanent, or can be permanent. But DACA is not a path to citizenship. And if there's a new president in the White House, that status could go away with one more executive order and they would all be subject to deportation,” he said.

Senators voted 25-11 for the amendment to remove DACA recipients from the bill. They then gave second-round approval to the bill on a voice vote.

Correction: An earlier version of this story, and the audio version, included an incorrect tally of the number of hours of debate that elapsed on LB137.