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Sen. Melissa Melendez. (Photo: screen capture, Senate Public Safety Committee hearing)

Senate Dems Kill Bill to Hold Fentanyl Drug Dealers Accountable with ‘Implied Malice’

Fentanyl deaths rose 400% between 2013 and 2017

By Katy Grimes, March 23, 2021 7:02 pm

Democrat members of the California Senate Public Safety Committee killed a bill Tuesday by Senator Melissa Melendez (R -Lake Elsinore), which would have held Fentanyl drug dealers accountable for “implied malice” if someone they sold the drug to died from taking it. Senate Bill 350, also known as “Alexandra’s Law” would require a court to issue an advisory to individuals convicted of selling or distributing controlled substances, to serve as a warning that if their actions result in another person’s death, they could be charged with murder. If passed the bill will treat drug fatalities the same way drunk driving fatalities are treated in California, according to Sen. Melendez.

Alexandra Capelouto, was a teen who died from fentanyl poisoning.

The Globe spoke with Sen. Melendez about SB 350, and the committee’s failure to pass it Tuesday.

During her presentation, Sen. Melendez held up a packet of Sugar-in-the-Raw, and said if one-half of the packet was heroin, it would be a deadly dose. But only three grains of the sugar, if it was Fentanyl, were deadly. “Fentanyl is 50 times stronger than heroin,” Melendez said. She said most people think they are buying a pain pill, not knowing it is laced with a deadly dose of Fentanyl.

Fentanyl deaths rose 400% between 2013 and 2017, Melendez said. She reminded the committee that famed singer Prince died in 2016 from Vicodin laced with Fentanyl.

“Drug Dealers have a financial incentive to sell Fentanyl,” said Melendez. “A little Fentanyl goes a long way and makes them a lot of money. Middle schoolers, high-schoolers, college kids, teachers, babysitters, truck drivers; they’re all dying from being poisoned unknowingly by drugs made to look like a prescription pill.”

“We’ve been reaching out to committee members for a week, with no response,” Melendez said following the hearing. “They were non-responsive, yet this bill has been set for hearing for two weeks. They never let us know they had a problem with it.”

And notably, no Democrat lawmakers have introduced any similar legislation to address the deadly Fentanyl crisis.

At the hearing, for more than one hour, parent after parent testified in person and on the phone about the horrors of losing a child to Fentanyl death. Nearly all parents said their children were not drug users, and thought they were buying a single pain pill like Oxycodone or Vicodin.

Melendez said she worked with California District Attorneys from across the state, and her own DA in Riverside County on the bill’s language and specifically the “implied malice,” which they need in order to more effectively prosecute Fentanyl drug dealers, and send a message of accountability.

Senator Steven Bradford. (Photo: screen capture, Senate Public Safety Committee hearing)

Melendez said Senator Nancy Skinner (D-Berkeley) brought up amendments at the hearing. “She said ‘if you take these minor amendments, we can pass your bill.'” But the amendments were not minor in any way, and took the guts out of the bill, according to Melendez. Amendments included the removal of the “implied malice” language. “This is the heart of the bill,” Melendez said. “It doesn’t guarantee, but is an option to charge with murder.”

“Most overdoses are accidental, so it does not equate manslaughter or murder,” said Senator Sydney Kamlager (D-Los Angeles.) Her comment sparked yelling from a parent in the gallery who said his child’s death wasn’t “accidental.”

Senator Steven Bradford (Committee Chairman) (D-Los Angeles), said he wouldn’t support SB 350 as written. “What’s missing is the level of culpability from the user,” Bradford said. “This is about drug use… we know there is inherent risk in doing so.”

Sen. Scott Wiener (D-San Francisco) said he talked with the parents, read every email regarding SB 350, but could not support the bill. Wiener said increasing penalties has not been effective in stopping or reducing drug use or dealing. “Incarcerating drug dealers for many years did not solve the problem or reduce deaths or overdoses,” he said.

The only support for SB 350 came from Senator Rosilicie Ochoa Bogh (Vice Chairwoman) (R–San Bernardino).

In opposition to SB 350, the California Public Defenders Association weighed in: “SB 350. by creating another basis for a murder charge is an attempt to resurrect the failed public policy of the past and return to mass incarceration as a solution for societal problems. … From our experience as public defenders, we know that many of those who engage in the illegal drug trade are often low-level users of drugs themselves. To punish them for the unintended consequences of engaging in illegal narcotic sales and for outcomes they never intended is contrary to sound public policy and humane treatment in our criminal justice system.”

Argument in Support According to the Riverside County District Attorney’s Office: “SB 350…will enhance murder prosecutions against those who knowingly distribute fentanyl to others which result in death, despite full knowledge that fentanyl is extremely dangerous to human life.”

“Currently, prosecuting a drug-poisoning or overdose death as murder is very difficult. Prosecutors may file second-degree murder charges utilizing the Watson murder rule, which requires that the fentanyl distributor had specific knowledge that providing the drug to another person to ingest was dangerous to human life but did so despite that knowledge. Proving the drug distributor had such knowledge can be challenging. SB 350 will significantly assist prosecutions under the Watson rule because it will statutorily require the court to warn certain convicted drug dealers, manufacturers, and traffickers in writing of the dangerousness of distributing fentanyl and other controlled substances to others.”

“Today the Legislature had an opportunity to prevent future fentanyl deaths and instead chose to side with drug dealers,” said Melendez.  Today’s outcome isn’t what the supporters of SB 350 or I wanted, but we’re not done fighting to ensure drug dealers are held accountable for the lives they take.  This is only the beginning and the fight is not over.”

Melendez told the Globe she’s not giving up on SB 350. She had a book made of photos and the stories of California kids who died from Fentanyl poisoning. And during the hearing she held up a stack of letters from parents, telling the stories of their children’s deaths due to the drug.

You can WATCH the Senate Public Safety Committee hearing Tuesday here.

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