Rhode Island Gov. Dan McKee signed a bill into law on Sept. 28 that reduces personal-use possession charges for certain controlled substances from felonies to misdemeanors. The new statute applies to amounts of 10 grams or less and includes fentanyl, heroin and cocaine.
Attorney General Peter Neronha said he views the misdemeanor charges less as punishments and more as pathways to get people with substance use disorders into treatment. The new law allows for a maximum penalty ot two years of jail time, which is double the one-year maximum of most misdemeanors. But Neronha clarified that the logic behind this is not to prolong jail sentences. “The maximum penalty often defines how long the court can have supervision over somebody,” he said.
He added that public health experts view two years of supervision as “more appropriate,” given that most people require more than a year to complete substance use disorder treatment.
According to Neronha’s own research, out of the 400 or 500 personal-use felony cases involving fentanyl in a five-year time frame, only one to three people were sentenced to time in jail, and none of these sentences exceeded roughly 30 days.
“If you were going to be facing the consequences of a felony conviction, that ought to be something serious enough to warrant felony treatment,” Neronha said. “These cases just didn’t warrant felony conduct.”
State Senate Majority Leader Michael McCaffrey (D-Warwick), who introduced the bill, said that a treatment-based approach is more cost-effective than criminalization, as Rhode Island spends roughly $100,000 per year to incarcerate one person.
Associate Professor of Epidemiology Brandon Marshall praised the law as “one step toward addressing racial (and) ethnic inequities in our criminal justice and public health systems,” emphasizing that people of color are arrested and incarcerated more frequently for drug crimes and receive more severe sentences than white people.
Haley McKee is the co-chair and co-founder of the Substance Use Policy, Education and Recovery PAC, which wrote and lobbied for the original version of this legislation. She said that 658 out of the 1,111 simple drug possession arrests in Rhode Island in 2019 were of people of color. She added that this occurred despite the overwhelmingly white composition of the state and the similar drug usage rates among white people and people of color.
Neronha added that the law helps his office — which consists of 70 attorneys who are tasked with prosecuting between 8,000 and 9,000 pending felony cases “at any given time” — to focus on “the most significant cases,” such as those of drug dealing, violent crime and public corruption, rather than small personal possession charges.
The weight of a felony
The consequences of a felony conviction are personal for Project Weber/RENEW’s Overdose Prevention Program Director Dennis Bailer, who was convicted of a felony on a drug possession charge before the bill was passed.
When police officers discovered $40 worth of cocaine while investigating his vehicle during a traffic stop, Bailer — who struggled with a substance use disorder at the time — was charged with a felony. Although he was confined at the police station “for a weekend,” Bailer said the charge continued to follow him even after he sought treatment, resulting in rejected housing and employment applications.
According to Haley McKee, Bailer’s story isn’t unique, as felony convictions often deny people the “holy trinity” of “housing, employment and education.” She added that misdemeanors are less stigmatizing than felonies and thus don’t pose the same threat to people’s ability to “fully participate in society.”
Bailer also said that felonies result in fees, fines and related court appearances that may further trap individuals with low incomes in the criminal justice system.
“The charge really isn’t equal to the crime,” he said. Bailer, who testified in legislative hearings while the bill was under consideration, added that the over-criminalization of personal-use possession charges “doesn’t serve any practical purpose.”
RIPCA, charging dealers
The legislation passed with strong bipartisan support in both the State House and Senate. But Haley McKee said this did not occur until more than two years after the introduction of the original version of the bill, which defined the maximum possession before a more serious charge as 28 grams. While she said the bill had “overwhelming support from all the people who are in power,” the “extremely adversarial” lobbying efforts of the Rhode Island Police Chiefs’ Association prevented the original bill from leaving committee in 2019. The law passed after Neronha re-introduced the legislation in another legislative session with a more modest 10 gram maximum.
RIPCA Executive Director Sid Wordell said his organization is opposed to the drug reclassification law. He emphasized that RIPCA still supports minimizing the damaging effects of felonies by improving convicted people’s access to housing and employment, facilitating expungement and using the Attorney General’s present powers to divert cases so that individuals can complete treatment programs in lieu of receiving felony convictions.
“But with that said, 10 grams of (drugs like) fentanyl, never mind carfentanil, can kill hundreds of people,” Wordell said. “There was no way that we could support that.”
Neronha acknowledged the dangers of fentanyl but maintained that the law “doesn’t do anything to protect people who sell fentanyl.” He emphasized that, while the law reclassifies personal-use possession of 10 grams or less as a misdemeanor, it still treats possession of any quantity with intent to sell as a felony.
Despite this, Wordell said that someone in possession of 10 grams of fentanyl “is clearly dealing in the drug,” and the new law would make it harder for law enforcement to charge this person with a felony in the absence of other information that specifically links the individual to a clear intention to deal.
While he acknowledged that the Attorney General’s office has been able to charge people found with up to 10 grams with dealing since the change in the law, Wordell said he will have to “wait and see if things work out.”
Marshall, the epidemiology professor, is less concerned about the possibly reduced ability to prosecute dealers than the issues that result from a focus on prosecuting dealers.
He said that although he understands why people may be inclined to blame overdose deaths on the person that supplied the substance, lower-level traffickers and dealers “are often using themselves or have substance use disorders.” Additionally, he believes this focus won’t effectively counter drug abuse within the population, given that even higher-level traffickers are “very quickly” replaced whenever caught.
Bailer confirmed that the boundaries between user and dealer are blurry, since many people work as middlemen in order to support their own drug usage. While he agrees that law enforcement efforts should focus on “the actual mid-level dealers,” he cautioned that serious attention should be given to ensure that “the people who are on the streets and just trying to survive” aren’t wrongly labeled as dealers.
The future of drug policy
Haley McKee hopes the consequences of this law will parallel those seen in Connecticut, which passed similar defelonization laws in 2015 and subsequently experienced “fiscal savings of about $12.7 million a year in cost of corrections,” no increase in crime and a per capita overdose death rate lower than Rhode Island’s.
Because of the support she has received from the Governor and Attorney General, McKee believes Rhode Island is “uniquely positioned” to build upon the state’s previous strides in drug decriminalization and overdose prevention — such as the approval of the nation’s first Harm Reduction Center, where individuals can safely use drugs under professional supervision. She hopes the state will expand defelonization of personal-use possession to the originally proposed maximum of 28 grams and eventually realize the goal of full decriminalization.
Instead of moving toward further legalization or decriminalization, Wordell believes the state should focus first on improving the availability of treatment services for substance abuse. Because the distribution of grant funding for recovery programs is concentrated in the most densely populated areas of the state, he said that many Rhode Islanders with substance use disorders who live outside these areas do not have uninterrupted access to resources for their addiction problems. He added that the insufficient availability of resources makes it difficult for police officers to transfer those with substance use disorders to a treatment provider.
Wordell said the state should allocate more money in proposed budgets to substance abuse programs and law enforcement.
Marshall said the solution to the drug abuse epidemic lies in a “compassionate approach” that expands voluntary access to treatment and bolsters the present harm reduction system, adding that the drug reclassification law is “a very good first step.”
Neronha hopes the law will allow the criminal justice system to serve as a “pathway” for people to escape their substance use disorders. “People are going to do better when they’re through the cycle of addiction, in terms of getting employment (and) providing for their families. It’s going to keep them out of the criminal justice system going forward,” Neronha said. “That will help them succeed, and that will be good for them and the rest of (society) as well.”