Harsher Sentences for Heroin May Not be Best Solution

A new Kentucky law breaks with policy that has proven effective in other states and requires more prison time for heroin dealers and users. Kentucky HB 333, introduced to the House February 13, then sent to and amended by the Senate and passed March 30 as SB 14, was signed into law by the Governor on April 30, changing the emphasis from less incarceration and more treatment to longer prison terms and more money spent by the state.

The new law rolls back many of the provisions set forth by a previous attempt at reform. House Bill 463, passed into law in 2011, attempted to divert nonviolent drug offenders to treatment rather than prison, but that seems to be a thing of the past. Now, aside from limiting the amount of opioid painkillers that a physician may prescribe for a patient each month, the law lengthens the sentence for those trafficking Fentanyl, as well as potentially lengthening the sentence for dealing or using heroin, regardless of whether the dealer himself is an addict and regardless of the amount of heroin in the transaction.

An Insider Louisville article published April 12 closely examines the new law. The article makes a clear comparison between the new and the old laws, emphasizing the difference in both jail time and parole, stating:

Current law includes a so-called “peddler distinction,” in which an addicted person sharing under two grams of heroin for their first offense is charged with a Class D felony that carries a one- to five-year sentence and is eligible for parole after serving 20 percent of that sentence. The new law would end such a distinction, making the first offense for sharing any amount of heroin a Class C felony with a five- to 10-year sentence and parole eligibility only coming after half of the sentence is served. A second offense would be a Class B felony with a term of 10 to 20 years.

The Legislative Research Commission (LRC) estimates that, in addition to increasing sentences, the new law will be more costly. If the 497 incarcerated under the old laws were held by the new law, it would take the state an extra $30 million to cover the cost.

Critics of the law, including Rebecca DiLoreto, the legislative agent for the Kentucky Association of Criminal Defense Lawyers, who was quoted in the Insider Louisville article, believe it will be counter-productive. They suggest that because drugs are easily accessible in prison, addicts sent there will continue to be addicts when they are released — meaning, for non-violent offenders, at least, being in prison will not help the problem. In light of this, individuals facing such circumstances often seek advice from a drug charge lawyer to explore legal options that might be more rehabilitative than punitive.

Critics also suggest that the new law could very well pose a serious problem by pushing even more inmates into an already overcrowded prison system.

However, advocates for the bill suggest it is one solution to fighting the opioid epidemic. While treatment is viable, the results of the bill signed into law in 2011 not only failed to solve the problem, but also went far over the cost estimates, and ultimately a new solution was needed.

The new law may have certain positive elements, but one thing is for certain: the negative effects, at least as they stand now, will most likely do little to change the drug culture in Kentucky and in some instances, may make it worse.

Dan Carman is a criminal defense attorney located in Lexington, Kentucky and handles cases throughout the state. If you have questions or seek a consultation, contact us online or call us at 859-685-1055.