The Orange County D.A. does it. The Riverside D.A. does it. Heck, even the San Francisco D.A. does it. And if Sen. Tom Umberg and Co. had their way, every court in every California would do it, too.
In an attempt to rein in the devastation wrought by fentanyl-laced street drugs, the stunningly bipartisan Senate Bill 44 would have required courts to issue warnings to convicted fentanyl dealers that their fake Oxycontin or Xanax pills can kill — and that if they keep selling the drugs, and someone dies from a fentanyl overdose, they could be prosecuted for homicide.
A parade of anguished parents, carrying portraits of their dead children, implored the Senate public safety committee to approve the bill at a hearing on Tuesday, March 28, in Sacramento.
Dubbed “Alexandra’s Law,” it was named after Alexandra Capelouto, who thought she was taking Percocet and died from fentanyl poisoning a few days before Christmas in Temecula in 2019.
Co-author Sen. Rosilicie Ochoa Bogh, R-Yucaipa, choked back tears as she acknowledged the pain in the room. “This is an advisement,” she stressed for Senate committee members who’ve blocked myriad attempts to get tougher on fentanyl dealers. “This seeks to educate offenders of the consequences on their own lives.”
When someone pleads guilty to, or is convicted of, selling or distributing drugs containing fentanyl, the court would deliver a warning fashioned after the one drunk drivers receive upon a first offense. If there’s a second offense, and someone dies, the warning would allow prosecutors to argue that the accused had “an abandoned and malignant heart” and exhibited “a wanton disregard for life,” setting the stage for a homicide charge.
It’s not a panacea, but just another tool, argued Umberg, D-Santa Ana, former deputy director of the White House Office of National Drug Control Policy, chair of the Senate Judiciary Committee, U.S. Attorney and career prosecutor.
“They’re on notice. It doesn’t even automatically mean conviction – it’s simply evidence of state of mind,” he said.
The bill was freakish in that it had 41 authors and coauthors from both sides of the aisle. “The need is apparent,” Umberg told the committee. “The body politic is crying out for action on our part.”
The body politic didn’t get it.
Brick wall
Former Sen. Melissa Melendez, R-Lake Elsinore, tried to pass a version of Alexandra’s Law twice.
Former Sen. Pat Bates, R-Laguna Niguel, tried to pass myriad bills cracking down on fentanyl dealers as well.
This time, the effort was spearheaded by Umberg, a Democrat with bona fides. It included compromises to make it more targeted and gentler to underage offenders. It focused on dealers, not users. But the objections were the same.
“The advisory would be used …to establish the mental state of malice, required for a murder charge, when the person involved in the drug transaction had no intention of ever killing or injuring the person who knowingly obtained the controlled substance,” the California Public Defenders Association argued in written opposition.
“SB 44, 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. California recently moved away from imposing draconian punishments on those who never intended to kill another human being by their actions and moved toward a more humane society.”
Many people in the illegal drug trade are low-level drug users themselves, and to punish them “for the unintended consequences of engaging in illegal narcotic sales and for outcomes that they never intended is contrary to sound public policy and humane treatment in our criminal justice system,” the public defenders said.
A smaller parade of people echoed those sentiments in the committee room. Those folks had the committee’s ear.
Simply making it easier to prosecute will not solve the fentanyl problem, will not stop it from crossing the border, will not stop the demand for drugs, said Sen. Steven Bradford, D-Gardena.
“The focus should be on causation, prevention and treatment,” he said. “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.”
Sen. Scott Wiener, D-San Francisco, worried that people who honestly didn’t know they were dealing drugs laced with fentanyl would get swept up and convicted thanks to this law.
Umberg stressed that no one would be held liable the first time around — they simply couldn’t plead ignorance the second time around. There were no guaranteed convictions. And that of course this wasn’t the answer to the fentanyl problem — it was just one tool in a toolbox that must include prevention, education and treatment.
No matter. Alexandra’s Law went down. Again.
Dollars for death
“This is a disgusting display of a legislative committee holding hostage 40 million people and their safety and security, all in the name of political, ideological gameplay,” fumed Matt Capelouto, Alexandra’s father, standing amid a crush of anguished parents at a press conference after the hearing.
“I’m appalled to be standing here once again expressing disagreement with a public safety committee that refuses, absolutely refuses, to do something, anything, about the fentanyl epidemic tearing our communities apart. I’ve been here twice before. … The first time, I was stunned. The second time, I was angry.”
This time, disgusted. Capelouto excoriated the Senate committee members for quibbling about words and phrases — and worrying about how fair or unfair it might be for drug dealers — while the dealers trade dollars for death.
“What all of us want here is to protect people from the enduring, the never-ending pain of someone being killed by a drug dealer selling poison,” Capelouto said. “And they won’t do it. They won’t even pass a bill that contains a warning — a freaking warning.”
“My heart breaks for you,” Umberg said. He’s deeply disappointed but holds out hope for the bill’s reconsideration: Work on points of contention is underway, and a new version of the bill could come forward in a matter of weeks.
Burying your child, said San Francisco District Attorney Brooke Jenkins, is the worst pain one can ever imagine. One of the first decisions she made upon becoming D.A. in January was to give this type of admonition to those selling fentanyl in San Francisco. It’s “deeply necessary” not only to allow for the prosecution of crime, but to help dealers understand the deadly game they’re playing and give them a chance to change.
“Our government should never turn a blind eye to this type of practice,” she said. “It’s not over. Justice may be delayed, but that doesn’t mean it will be denied.”
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