Daily Independent (Ashland, KY)

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March 26, 2014

House passes bill to crack down on heroin trafficking

FRANKFORT — It took a couple of last-minute pleas from supporters, but a bill to crack down on heroin trafficking narrowly passed out of the House Judiciary Committee.

Senate Bill 5, sponsored by Sen. Katie Kratz Stine, R-Southgate, easily passed the Senate and would allow heroin traffickers to be charged with homicide if one of their purchasers died from an overdose.

That provision includes a “presumption” that the death is “foreseeable” and that creates constitutional concerns for some, including the Guthrie True, the president of the Kentucky Association of Criminal Lawyers, Guthrie True, and the association’s legislative agent, Ernie Lewis.

Stine’s bill also provides that those convicted of heroin trafficking must serve 50 percent of their original sentence; that Medicaid can pay for treatment for addicts; and provides a “good Samaritan” provision that allows someone to call for medical help for someone suffering an overdose without fear of prosecution.

True and Lewis said they support the provisions of the bill which deal with increasing treatment options for addicts but they believe the presumption the seller should foresee death by overdose is unconstitutional. Lewis said that provision would prevent a defense that the victim had several drugs in his blood at the time of death, any of which might have caused death.

“Senate Bill 5 is unconstitutional because it presumes (the death) was foreseeable,” Lewis said, citing several court rulings and contending the bill shifts the burden of proof from the prosecution to the defense.

It might also allow prosecution for homicide of someone who never met the ultimate victim — if one sold heroin to someone who subsequently sold it to a person who overdosed, conceivably the first seller might be charged with homicide.

True said heroin is “an insidious problem,” but he said it isn’t one “we can prosecute our way out of. We do have a problem we can treat our way out of; we have a problem we can educate our way out of, but we can’t prosecute our way out of it.”

But proponents made impassioned pleas for the law, including Stine, a northern Kentucky judge who said “80 to 90 percent of my docket is heroin-related,” Attorney General Jack Conway and a mother of an overdose victim.

“Heroin has overwhelmed our court system, our jails and our law enforcement,” Stine told the committee. She talked about the dramatic increase in heroin arrests and medical emergencies arising from heroin use in the past two years in northern Kentucky.

Conway said heroin is replacing prescription painkillers in Kentucky as the state has enacted legislation to crack down on prescription opioid drugs. Others who testified in support of the bill included Justice Cabinet Secretary J. Michael Brown, Van Ingram who heads the Office of Drug Control Policy and law enforcement officials.

Committee Chairman Rep. John Tilley, D-Hopkinsville, offered a committee substitute which kept the original provisions of Stine’s bill but added a needle exchange program to help reduce the incidence of AIDS and other diseases spread by re-using contaminated needles.

That complicated the bill’s prospects because several Republicans on the committee who planned to support the measure objected to the addition of the needle exchange measure.

Others objected to the presumed and “foreseeable” homicide provisions, agreeing with True and Lewis, and when the vote began it looked as if the bill would fail to gather the 12 votes necessary for passage.

Several Democrats passed, citing their concerns about the law’s constitutionality and some Republicans passed, two of them citing the needle exchange provision.

But during the vote, Rep. Tom Riner, D-Louisville, pleaded with committee members, several of whom had already passed, to vote for the bill, saying any concerns could be addressed with floor amendments. Still, when the vote tally was complete, there were only 11 votes for passage. No one voted against it, but nine passed.

The bill required 12 yes votes to go to the House floor, and Tilley pleaded for one of the pass votes to switch. After a few minutes, Rep. Kelly Flood, D-Lexington, switched her vote to yes, saying she reserved the right to vote no on the floor.

That sent the bill to the House floor, but with only two days left on the calendar that were originally scheduled for legislation, the measure must still clear the Rules Committee on Thursday.

RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.

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