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by Isiah Holmes, Wisconsin Examiner
March 21, 2023

This story also appeared in Wisconsin Examiner

A bill crafted by Republican legislators seeks to increase existing penalties for delivering controlled substances which later result in a death. Senate Bill 101, and its counterpart Assembly Bill 68, raise reckless homicide penalties for delivering fatal drugs from 40 years in prison to 60 years. The accused could also be fined up to $100,000, as already allowed under current law. The bill also changes reckless homicide of this nature from a Class C to a Class B felony.

Senate bill author Sen. Van Wanggard

Sen. Van Wanggaard

Sen. Van Wanggaard (R- Racine), the Senate bill’s author, wrote in testimony to the Judiciary and Public Safety Committee that the bill could save lives. “In recent years, the number of overdose deaths involving opioids has risen due [to] the skyrocketing availability of synthetic opioids, mainly fentanyl,” Wanggaard testified on March 16. Sadly, “a large number of the people who overdose on fentanyl have no idea that they are actually ingesting it. This is because not only are illegal drugs like cocaine and heroin being laced with fentanyl, but counterfeit prescription drugs like Xanax and Oxycodone are as well.”

Rep. Scott Allen (R-Waukesha), author of the Assembly version, also focused on fentanyl in his testimony. Both Wanggaard and Allen stressed that the legalization of fentanyl testing strips eliminates any excuse a person might have to say they didn’t know the substance was present in the drugs they were distributing. “In many cases the dealers know what they are selling, and in those cases where they don’t, the dealers can utilize legalized fentanyl testing strips,” Allen stated. “There is no excuse for a dealer or distributor to offer fentanyl to anyone without knowing.”

It’s true that overdose deaths across the country have been propelled by fentanyl. The drug, originally developed to treat intense cancer pain, can be up to 50 times more potent than heroin. Across Wisconsin in 2021 more than 1,400 people died of a drug overdose. It’s a toll felt from small towns to Milwaukee County, which saw 644 drug-related deaths last year. While unveiling a harm reduction vending machine program, officials noted that a Milwaukee resident dies of an overdose every 16 hours. One of the county’s top public health officials, Dr. Ben Weston, said during the unveiling that 95% of opioid overdoses are linked to fentanyl.

The legislation Wanggaard and Allen are proposing doesn’t just focus on fentanyl, however. It covers “certain Schedule I or Schedule II controlled substances, controlled substance analogs, or ketamine or flunitrazepam.” Analogs could cover fentanyl and such fentanyl analogs as para-fluro fentanyl and acetyl fentanyl, which have varying potencies. Many analogs are created specifically to circumvent regulations which apply to specific kinds of fentanyl.

(Photo by Jeff J Mitchell/Getty Images)

Ketamine, on the other hand, is an anesthetic used in medical procedures. Recreationally, people use ketamine for its sedating and hallucinogenic properties. However, only doses about 25 times the standard recreational amount are considered life-threatening. It’s also used to treat psychiatric disorders such as major depression, bipolar disorder, postpartum depression and PTSD, including in private clinics in Milwaukee. Flunitrazepam, also known as Rohypnol, is a benzodiazepine used to treat insomnia and assist with anesthesia. These kinds of drugs, sometimes known simply as “benzos,” are also used recreationally.

At least in Milwaukee County, which keeps very detailed drug overdose data, neither ketamine nor Flunitrazepam were prevalent among the dead. The Milwaukee County Medical Examiner’s Office documented 544 drug-related deaths in 2021, just three of which involved ketamine. Fentanyl was also linked to two of those deaths. No deaths in 2021 were linked to Flunitrazepam in Milwaukee County. In early February, the Medical Examiner’s Office told Wisconsin Examiner that 318 cases of drug-related deaths from 2022 were still pending. Still, in a spreadsheet the office sent which detailed 523 death cases which were completed, neither ketamine nor Flunitrazepam made an appearance. And on Tuesday, the office confirmed that there had been no deaths in 2022 from either ketamine or Flunitrazepam.

Assembly bill author Rep. Scott Allen

 Rep. Scott Allen

In his testimony, Allen argued for adding other controlled substances to the bill. “Perhaps you might be wondering about why I keep talking about fentanyl when it is not mentioned directly in the bill,” he wrote. “The rationale for this is that the synthetic opioid market keeps changing. Right now fentanyl is the problem, but two years from now, it might be a different drug. If this bill only mentioned fentanyl, we would be behind again in a couple years.”

The legislation doesn’t appear to distinguish between those who sell drugs and drug users who may also use with people they know. In early February, Allen told Wisconsin Examiner, “I am empathetic to the difference between a friend sharing drugs and a drug dealer, and also concerned about creating an easy loophole for criminal exploitation.” Allen said he welcomes solutions that would address those concerns.

In his committee testimony, Allen pointed out that the bill does not include “a joint user defense.” Allen asked, “Will we be sending friends who are partaking together to jail in the same way as we would a drug dealer? My concern with the joint user defense is that it provides a loophole for any drug dealer to claim or an unintended potential defense for a nefarious homicide. Furthermore, with the legalization of fentanyl testing strips, there is no reason for anyone to accidentally offer someone fentanyl.” Allen’s testimony points to the discretion district attorneys have in making charging decisions, while also blasting “soft-on-crime judges” for creating “the problem of revolving-door criminals.”

Arrests of friends who’ve used drugs together when they weren’t dealers themselves have occurred in Wisconsin. That creates a chilling effect among those struggling with addiction, making them fearful to call for help. In Wisconsin, calling 911 does not guarantee that you won’t be charged in connection with an overdose. Police use a variety of techniques to investigate overdoses including obtaining cell tower data, monitoring social media, and downloading the content of seized phones. Four law enforcement organizations including the Milwaukee Police Association, Wisconsin Chiefs of Police Association, Wisconsin Professional Police Association and the Wisconsin State Lodge Fraternal Order of Police, have all registered in favor of the bill. The American Civil Liberties Union (ACLU) of Wisconsin has registered against.

After the bill passed the Republican-controlled Judiciary and Public Safety Committee, Sen. Chris Larson (D-Milwaukee) blasted it. “The war on drugs has been an abject failure that has ruined lives and entire communities for decades,” Larson wrote on Twitter on March 16. “This bill allows 60-year prison sentences for reckless homicide for people who provide drugs to someone who then dies of an overdose — even if the person had no idea the drug would lead to overdose and did everything in their power to try to save the other person’s life.” Larson added that, “this bill will lead to more needless overdose deaths as people avoid calling 911 for fear of being prosecuted. We need treatment and harm reduction, not more incarceration.”

Update: This story was updated Tuesday, 3/21/2023, at 10 a.m. with new information from the Milwaukee County Medical Examiner’s Office on the absence of deaths from ketamine or Flunitrazepam in 2022.

Wisconsin Examiner is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Wisconsin Examiner maintains editorial independence. Contact Editor Ruth Conniff for questions: Follow Wisconsin Examiner on Facebook and Twitter.

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