Members of the Maine Sheriffs’ Association and the Maine Medical Association on Monday voiced support for a bill that could significantly reform Maine’s drug sentencing laws.
The Criminal Justice Committee is considering legislation, LD 1492, introduced last year by state Rep. Pinny Beebe-Center (D-Rockland), that would attempt to bring Maine in line with other states that have reformed their drug sentencing laws in order to reduce the incarceration of people struggling with substance use disorder.
“Prisons are established to confine and punish people,” said Dr. Lani Graham, a member of the Maine Medical Association and former director of the Maine Bureau of Health, told committee members. “They are not established to be urgent care providers.”
During Monday’s work session, health advocates explained that Maine’s current laws do not reflect how people with substance use disorder use drugs.
Further, they said that arbitrary weight limits on illegal drugs established in Maine’s criminal codes are being used to determine whether someone is prosecuted as a drug user or trafficker, regardless of intention. Those distinctions can mean the difference between a misdemeanor or a felony charge — a difference that members of the committee heard repeatedly can profoundly impact users’ lives long after their arrest.
The proposal would require prosecutors to prove that someone has the intention of trafficking. It also would end some felony charges based on prior possession convictions, as well as decriminalize needle possession, and eliminate crack/powder cocaine charging disparities.
“Thirty-nine states do not use weight as a method of determining trafficking. The entire South — not exactly a bastion of liberal thinking — has higher standards for felonies,” said Graham. “Maine is an outlier here.”
The bill would also lift the threshold for misdemeanor possession charges. Right now, carrying more than 200 milligrams of “schedule W” drugs — cocaine, oxycodone, or methamphetamine or heroin — would trigger a felony-level charge.
“Just looking at this 200 milligrams threshold for a felony, that seems kind of outrageous to me,” Mary Dowd, the medical director of the Milestone Recovery center in Portland, told lawmakers. “People are using way more than that.”
“The patients who I’m seeing in detox are usually using two to three grams a day of heroin or fentanyl,” she said. “I see people who are using up to five grams, and occasionally, I’ll see a patient who says they’ve done 10 grams in the last couple of days.”
Knox County Sheriff Timothy Carroll, who is in his 29th year in law enforcement, agreed with the health advocates’ call to reform Maine’s drug sentencing laws.
“When I started, it was the thing to do,” Carroll said of the practice of arresting people who use drugs. “If you broke the law, if you had drugs, if there was a reason to arrest, I did. Looking back on it now, I could say that was part of the problem.”
“If this is a method of getting people help quicker and not just automatically locking them up,” he added, speaking on behalf of the Maine Sheriffs’ Association, “then I think we are doing a better job as a society.”
The Maine Drug Enforcement Agency opposes changes
There is resistance to reform from some areas of Maine’s law enforcement community. The Maine Drug Enforcement Agency opposes the bill. Last year, Beebe-Center and a small group of advocates met with Governor Janet Mills’ office, trying to bring Maine’s former attorney general over to their side. The bill was held back from a vote last session at the request of the governor’s office.
Now, the details of the bill are being negotiated and will likely be revised before facing a vote by the Criminal Justice committee.
On Monday, Beebe-Center said she would strike proposals to raise possession thresholds for fentanyl from the legislation, which may be a sticking point for some law enforcement officers who are otherwise open to other reforms.
Some recovery advocates warn, however, of the danger of making a carveout for a substance that is such a big part of Maine’s opioid crisis.
“Fentanyl is increasingly being mixed with other opioids and substances like cocaine and methamphetamine. A substance with just a pin-prick of fentanyl could test positive,” explained Whitney Parrish, advocacy director of the Health Equity Alliance. “So, any person with an opioid like heroin on them, essentially has fentanyl on them.”
The requirement to prove intention for trafficking charges is also a point of negotiation.
Mark Dion, a former sheriff and state representative and Democratic candidate for governor, passed out small bags of flour to committee members on Monday, representing common amounts sold on the streets. Dion, who maintains a criminal defense practice in Portland, said he wanted the lawmakers to visualize the amounts that differentiate possession from trafficking.
“I have no problem if a prosecutor brings forward a charge of trafficking. I would only ask they prove it,” he told lawmakers. “If you’re charged with armed robbery, burglary, or aggravated assault, it’s the burden of the state to prove each and every element of the crime beyond any reasonable doubt. That’s the system.”
Top photo: Rep. Pinny Beebe-Center introduces her bill, LD 1492, “An Act To Reform Drug Sentencing Laws,” in the Criminal Justice Committee in May 2019 | Dan Neumann, Beacon
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