‘It’s either fill the prisons again with people of color or fill the mortuaries,’ says one parent in response to fears that stiffer penalties would hurt minorities

The message from Sacramento has been clear: powerful state lawmakers have no appetite for a return to the War on Drugs, even as a way to combat the deadly fentanyl epidemic.

For years now, law enforcement, prosecutors and families of fentanyl victims have pleaded for harsher penalties for dealers of the synthetic opioid, which is 100 times stronger than morphine and 50 times stronger than heroin. In 2021, fentanyl killed 5,722 people in California, many of whom thought they were taking prescription medications or other drugs.

The graveyard for such legislation has been the Senate and Assembly public safety committees, which have repeatedly rejected bills that would result in more incarceration of fentanyl dealers.

On Tuesday, April 25, the Senate Public Safety Committee blinked slightly by approving SB 226, which would make it a felony to possess fentanyl with a loaded, operable firearm. Basically, the bill by state Sen. Marie Alvarado-Gill, D-Jackson, would expand an existing law, adding fentanyl to a list of less harmful drugs that cannot be possessed while having a firearm.

Victim families disappointed again

That distinction — that the committee was not creating a new law or new penalties — was stressed by committee member Sen. Scott Wiener, D-San Francisco, in rejecting another bill, SB 44, the latest iteration of Alexandra’s Law. The committee vote Tuesday came despite the impassioned pleas of families carrying pictures of children killed by fentanyl poisoning.

Under Alexandra’s Law, proposed this time by Sen. Tom Umberg, D-Santa Ana, dealers convicted of selling fentanyl would be given a warning — much like the warning given by judges to first-time drunken drivers — that they could be charged with homicide if they again sell fentanyl resulting in death.

It was the second time this year that the committee torpedoed Umberg’s bill, despite modifications meant to appease committee members.

“I’m stunned,” Umberg said. “It’s very difficult to comprehend the committee’s view on this simple admonishment. … It’s discouraging that my colleagues don’t see the reality of the epidemic and the benefit of stopping repeat fentanyl dealers.”

‘Unintended consequences’

During the hearing, Wiener said Umberg’s bill was overly broad and would not provide the solution that proponents are seeking.

“The bill, if it passes, would have a lot of unintended consequences and would sweep up a lot of people who didn’t know” they were selling drugs laced with fentanyl, Wiener said.

Bills to increase penalties for possessing or selling fentanyl have hit a brick wall of liberal Democratic lawmakers, who say sending more people to prison is not a deterrent but a return to failed strategies that in the past mostly penalized people of color.

Steven Bradford, D-Gardena, a member of the Senate committee, said legislators should be focusing on manufacturers instead of further punishing street dealers who may not know their product is mixed with fentanyl.

“The focus should be on causation, prevention and treatment,” Bradford said during a recent hearing. “We’ve seen this movie before. In the ’80s and ’90s, with mass incarceration … thousands of Black and Brown people doing life in prison for selling an ounce of cocaine where no one lost their lives.”

Lawmaker: Race shouldn’t matter

The race argument falls flat with state Sen. Shannon Grove, R-Bakersfield, who saw two of her bills seeking harsher sentences for possessing and selling fentanyl rejected earlier by the Senate committee. Grove and others pushing to tighten drug laws say fentanyl is colorblind and deadlier than any drug ever peddled from a street corner.

“I don’t care what color your skin is, if you’re trying to kill our children … then you should go to prison for a very, very long time,” Grove said during a committee hearing.

With one side digging its heels against “Draconian,” anti-drug strategies and the other side insisting fentanyl dealers need to be held accountable, the debate will again be front and center in a special hearing Thursday, April 27, before the Assembly Public Safety Committee.

Six Assembly bills previously held up by committee Chair Reginald Jones-Sawyer, D-Los Angeles, will now be heard.

“As chair of Public Safety, I felt that the number of bills heard in my committee this year did not provide enough time to properly discuss this crisis in a manner that is consistent with its importance,” Jones-Sawyer said in a written statement.

Assembly bills

Proposals going before the committee Thursday include:

• AB 33 from Assemblymember Jasmeet Bains, D-Bakersfield, to create a Fentanyl Addiction and Overdose Prevention Task Force.
• AB 675 from Assemblymember Esmeralda Soria, D-Merced, to prohibit the possession of fentanyl while armed with a loaded firearm.
• And AB 955 from Assemblymember Cottie Petrie-Norris, D-Irvine, to increase penalties for trafficking fentanyl through social media by making it punishable with up to nine years in the county jail.

Some remain dubious that the Assembly Public Safety Committee will budge.

“The do-nothing bills, (Jones-Sawyer) will let them through, but nothing that adds any penalties,” said Melissa Melendez, a retired Republican state senator from Lake Elsinore. “That would be a 180 for him.”

Melendez, now president of the Golden State Policy Council think tank, has twice unsuccessfully carried Alexandra’s Law to make it easier to sustain murder charges against dealers who sell fentanyl resulting in death. The proposal was resurrected this session by Umberg.

Alexandra’s Law would have allowed prosecutors to argue that dealers not heeding the warning had “an abandoned and malignant heart” and exhibited “a wanton disregard for life,” setting the stage for a homicide charge.

Umberg: ‘Can’t let it go’

“I can’t let this issue go,” Umberg said after the admonition bill was rejected. “I can’t face any more parents grieving their lost daughters and sons without doing everything I can to stop this fentanyl poisoning. I will continue to return with other measures.”

The bill was named after Alexandra Capelouto, who overdosed on fentanyl in Temecula a few days before Christmas in 2019 after taking what she thought was Percocet.

Umberg’s proposal was co-authored by Sen. Rosilicie Ocho Bogh, R-Yucaipa, who also is vice chair of the Public Safety Committee. During a recent hearing on another fentanyl bill, Bogh said her colleagues have been overly compassionate to dealers.

“I’m begging this committee to start sending a message to people who are taking advantage of that compassion,” she said.

But lawmakers and activists who say longer prison sentences don’t work are unmoved.

Wrongly focused on punishment

Cristine Soto DeBerry, executive director of the progressive Prosecutors Alliance of California, said most of the fentanyl-related bills have wrongly focused on punishment.

“We tried that when crack cocaine was a big problem, we tried it when heroin was a big problem … it’s painful that we’re watching these solutions be proposed in 2023 when they didn’t work in 1983,” DeBerry said, referring to the so-called War on Drugs.

DeBerry said such bills would fuel racial disparity without any benefit to public safety.

“I’m not advocating there should not be any consequence,” she said. “(But) a punishment-focused strategy does not give us reduced drug use. … We don’t do anyone any favors by continuing to pound our chest and say it’s going to get us there when it doesn’t.”

DeBerry said she is not advocating against punishing drug dealers, but insists there already are enough laws on the books to do that.

‘War on murderers’

Orange County District Attorney Todd Spitzer says current laws don’t go far enough to combat the ferocity of fentanyl.

“Those legislators (blocking fentanyl bills) are complete cowards and I’m sick and tired of the BS excuse that they don’t want to repeat the ‘War on Drugs,’ ” Spitzer said in an interview. “I do believe if you lock up drug dealers we can reduce fentanyl deaths. … This is not a war on drugs, this is a war on murderers.”

In Orange County — under Spitzer’s guidance — some police and prosecutors already are warning first-time drug dealers that further sales could result in murder charges if someone dies. But many judges won’t accept the admonishment because it is not sanctioned by state law.

“I’m sick and tired of screwing around with the ineffectiveness of the Legislature,” Spitzer said.

Prosecutors in Riverside County and San Francisco also have begun issuing the warning on their own.

Tulare County Sheriff Mike Boudreaux, president of the California State Sheriffs’ Association, said state lawmakers have to find a way to put aside their philosophical differences.

“I would hope somebody sees the politics of this is endangering lives,” Boudreaux said. “There will be deaths.”

Hybrid bill needed

Boudreaux said the answer would be to offer a hybrid of sorts, combining stronger penalties with more social services in jail and a chance at the end to wipe the crime from a dealer’s record for low-level fentanyl possession and street dealing.

“If all you’re doing is putting them in jail, I agree, you’re not going to arrest your way out of this,” he said.

Perla Mendoza is among the parents of children killed by fentanyl who have repeatedly made the trip to Sacramento to plead with legislators. And every time, she returns home to Seal Beach frustrated and heartbroken.

Her 20-year-old son, Elijah Figueroa, was an addict who bought what he thought were 15 prescription-grade Xanax pills for $300 from a street dealer. He died at his grandmother’s house in Long Beach in 2020 after taking only one pill that contained fentanyl.

Mendoza, a former drug and alcohol counselor, has heard all the arguments against harsher fentanyl penalties. None, she says, hold water.

Dealers ‘are playing society’

“Allowing them to continue business as usual, you’re setting up serial killers,” she said. “It’s so disheartening. (Dealers) know exactly what they can get away with. They are playing society.”