Opioid Trafficking Crime and Punishment in Florida
In 2016, people were overdosing and dying at an alarmingly high rate after taking what they thought was heroin. At the time, heroin was cheap and easy to get. The American market was flooded with various strains of heroin. Then fentanyl began appearing in toxicology reports. From January of 2016 to June of 2016, 704 people overdosed in the state of Florida. Most, if not all, of the addicts who overdosed, were heroin addicts who unwittingly ingested heroin. Not only did people with substance misuse disorders need to worry about what they were shooting up, but law enforcement officers also had to devise new methods of dealing with the infestation of fentanyl.
Finding fentanyl in a mixture of suspected heroin was a game-changer for the people who were drug dependent, and the law enforcement officers who are sworn to investigate drug crimes. According to the South Florida Sun-Sentinel, the shipments of heroin-laced fentanyl, which is a synthetic opioid drug that is substantially similar to but more powerful than heroin, entered the United States from Mexico and Canada but was made in China.
Fentanyl is a pharmaceutical drug. Physicians use it to help reduce or eliminate patients’ pain. Fentanyl is still used in hospitals and surgical settings across the U.S. However, people dealing heroin cut its product with fentanyl or pressed fentanyl into small pills. No one knew the relative potency of the drug they were taking, nor did they know exactly what it was they ingested. Consequently, people were playing a game of chicken with the shots of heroin they cooked up. They had no way of knowing, and neither did the dealers. As a result, drug users would shoot the same quantity of heroin they would need to get high. The problem arose when there was little or no heroin in the shot, and people overdosed immediately, and many died.
Governor Rick Scott and the Florida Legislature enacted legislation to stem the tide of fentanyl overdoses and try to save lives. The 2017 legislation stiffened penalties for trafficking of all opioid-based drugs and created a new category of fentanyl trafficking. Despite the well-meaning intent behind the legislation, the amended law calls for draconian punishments for even the possession of only four grams of an opioid drug.
Florida’s drug trafficking statute, found in Chapter 893, §135, penalizes the trafficking of opioids, including fentanyl and other drugs. Subsection (c) of 837.135 indicates that a person who knowingly sells, buys, makes, delivers, or brings into Florida, or someone who is in actual or constructive possession of four grams or more, but less than 30 kilograms of opium, morphine, hydromorphone, or any salt, derivative, or isomer of any of those substances, including heroin, or any mixture of any of these substances and other substances is guilty of trafficking in illegal drugs. Trafficking in illegal drugs is a felony in the first degree. The maximum prison sentence is 30 years for a first-degree felony in Florida.
Chapter 893, §135, stratifies the minimum-mandatory penalties a sentencing judge must impose if a jury convicts the accused of trafficking in illegal drugs. The minimum-mandatory sentence depends upon the weight of the drugs the state proves the accused trafficked. The statute also sets forth the fines that the offender must pay as well.
For a conviction of a person who traffics in illegal drugs between four and fourteen grams, the judge must impose at least a three-year prison sentence, and order the offender to pay a fine of at least $50,000.00. The minimum-mandatory prison sentence increases to fifteen years if the person is guilty of trafficking in illegal drugs between fourteen grams and 28 grams (one ounce). The fine imposed by the court will be at least $100,000.00.
The minimum-mandatory prison term for a person convicted of trafficking in illegal drugs between 28 grams and 30 kilograms is 25 years, and the mandatory fine is $500,000.00. Any person who is convicted of trafficking in illegal drugs of an amount exceeding 30 kilograms is guilty of a capital offense and must be sentenced to prison for a term of life without the possibility of parole.
Trafficking in fentanyl carries a penalty scheme similar to trafficking in illegal drugs. Under 893.135(4), any person who buys sells, makes, delivers, or brings into Florida as little as four grams of fentanyl or its derivative is guilty of trafficking in fentanyl. The statute defines trafficking in fentanyl as a first-degree felony. Several substances fall under the category of fentanyl, all of which are synthetic. Substances like alfentanil, carfentanil, sufentanil, any other derivative of fentanyl, as well as any analogous substance, fall under the general term of trafficking in fentanyl.
The sentencing structure is the same as heroin. For a person who is convicted of trafficking in fentanyl of as few as four grams to as many as fourteen grams (one-half of an ounce), the minimum-mandatory penalty is three years confinement in the state’s prison in addition to a $50,000.00 fine. A person convicted of trafficking in fentanyl between fourteen grams and 28 grams, faces a fifteen-year minimum-mandatory sentence to the state’s prison as well as a minimum fine of $100,000.00. A person convicted of trafficking of 28 grams or more of fentanyl faces a minimum-mandatory prison sentence of not less than 25 years and must pay a fine of at least $500,000.00.
A person cannot be convicted of trafficking in illegal drugs or fentanyl unless the government proves beyond all reasonable doubt the offender committed the crime “knowingly.” Section 2 of 893.135 provides that a person acts “knowingly” when the person intends to commit the act, even if the act intended is not completed.
The amended laws were drafted with the idea of trapping drug dealers who peddle their wares on people crippled by disease. But, the statute goes too far. A person who buys four grams or more, which is not a large quantity of heroin or fentanyl, is guilty of trafficking. An addict could easily purchase four grams at a time if that person had the money. The addict would then be guilty of trafficking, and instead of getting help from the courts, the court will impose a harsh prison sentence that must be served day-for-day without the possibility of parole or early release.