May 15, 2021 Evan Popp

Bill aims to rein in Maine’s drug trafficking law, among the nation’s harshest

As part of a slate of bills to move away from failed “War on Drug” policies, Maine lawmakers heard a measure Friday that would reform the state’s felony drug trafficking law so that people can no longer be charged with a crime that can carry a sentence of up to 30 years simply for possessing a certain quantity of specific drugs. 

Currently, Maine statute allows prosecutors to pursue a drug trafficking charge if someone possesses two or more grams of heroin or fentanyl — which advocates said is a small amount for people with a substance use disorder — and to bring a drug furnishing charge for more than 200 milligrams but less than two grams of those substances. 

LD 1675, sponsored by House Assistant Majority Leader Rachel Talbot Ross (D-Portland), would strike from the legal definition of drug trafficking and furnishing those weight amounts. As a result, prosecutors wishing to pursue a felony drug trafficking charge would have to actually prove a person intended to sell the drugs. 

That change would bring Maine in line with most of the rest of the country, as 39 other states require that prosecutors demonstrate intent to sell when bringing a drug trafficking charge, according to the ACLU of Maine. As currently written, Maine’s drug trafficking laws are among the harshest in the country, creating a litany of barriers to essential needs such as housing and employment once someone gets out of prison.  

LD 1675 would also remove the disparity in Maine law between crack cocaine and powder cocaine, which are essentially the same drug chemically. Currently, the same penalty applies in the state for crack cocaine as for 3.5 times as much powder cocaine, the type of disparity that is a racist holdover from the War on Drugs.  

Talbot Ross’ measure, which was brought forward Friday in a public hearing before the legislature’s Criminal Justice and Public Safety Committee, comes as lawmakers are considering a series of bills to reform Maine’s drug laws. Another bill in that slate would remove criminal penalties for possession and exchange of hypodermic syringes. That measure passed the committee in late April, with only one legislator opposed. An additional bill, which received overwhelming support during a public hearing last month, would decriminalize unlawful possession of scheduled drugs by making it a civil violation.

Taken together, the bills represent a continued effort by advocates and lawmakers to roll back punitive policies that criminalize people who are often suffering from the disease of substance use disorder. An estimated 60-85% of Mainers who are incarcerated have substance use disorder, with advocates arguing that the policy of imprisoning those who use drugs has not worked, pointing to the record number of drug overdose deaths in 2020.   

“Each of us has too many constituents who have lived with substance use disorder,” Talbot Ross told the committee. “To help these constituents get their lives back on track, they need access to employment opportunities, safe housing and health care. They do not need to be threatened with felony drug trafficking charges that will derail their future housing, employment and opportunities.” 

Sen. Craig Hickman (D-Kennebec), a co-sponsor of the bill, added that the current law represents a perversion of language, with the state presently able to treat trafficking and possession as synonymous, even though the two words clearly have different meanings.

“This bill will rein in a government that has grown too comfortable twisting the English language to shackle people,” Hickman said.  

‘Why don’t we try something different?’ 

A number of advocates and Mainers in recovery from substance use disorder spoke in favor of LD 1675.

Joe Kubetz of Portland said that 20 years ago, he was undergoing his own experience with substance use disorder but was lucky enough to get treatment. Kubetz said LD 1675 would mean more people can access treatment rather than being incarcerated. 

“Instead of putting people in jail, this bill would shift the focus back to connecting people with services and support that they need. We’ve seen how incarcerating people doesn’t work. Why don’t we try something different?” he said. 

Peter Lehman of the Maine Prisoner Advocacy Coalition said that there is no evidence the state’s harsh drug trafficking statute has reduced substance use. 

“But there is abundant evidence that this trafficking statute cost us a lot of money paying for policing” and for imprisoning people for excessive amounts of time, said Lehman, who was formerly incarcerated and is in long-term recovery. 

In addition to being damaging for those suffering from substance use disorder, Meagan Sway, policy director at the ACLU of Maine, pointed out that the law as currently written has led to racial disparities. While Black people make up 1.6% of Maine’s population, they are 21% of the Class A drug arrests and 15% of the Class B drug arrests, Sway said.  

Another point of emphasis during the hearing, from both those in support of LD 1675 and those opposed, was the proliferation of fentanyl in Maine’s drug supply, with many drugs bought on the street laced with the substance. Given that people often don’t know that the substance they have is laced with fentanyl, Whitney Parrish of the Health Equity Alliance said they shouldn’t be charged with a trafficking felony for a drug they didn’t even intend to possess. 

For those who knowingly use fentanyl, many of whom have no intent to sell or traffic, Parrish said incarceration is not the answer. 

“Expecting criminal charges to be successful leverage in stopping a physical dependence, chaotic use or substance use disorder does not make sense,” Parrish said, mirroring a point that has been made in previous hearings by medical experts. 

Attorney general offers alternative proposal 

Attorney General Aaron Frey testified in favor of the proposal to remove disparities between cocaine and crack cocaine. However, he opposed completely removing the ability to charge someone with drug trafficking based on certain weights of heroin and fentanyl but did propose an alternative reform.

Currently, as the trafficking and furnishing statutes are written, Frey said a defendant is not able to present evidence that the drug was for personal use. As a result, he said he would support a change that would treat trafficking laws for heroin and fentanyl like those for other drugs. That shift, Frey said, would still allow for trafficking or furnishing charges to be brought based on a certain amount of heroin or fentanyl while providing “an opportunity for a defendant to make their case that the possession was for personal use” and also promoting “equitable charging of these crimes across the state.” 

The Maine Prosecutors Association also testified at the hearing. The group opposed the overall bill, although it did support the sections around equalizing the treatment of cocaine. On the parts of the bill around heroin and fentanyl, the group referenced the more than 500 Mainers who died from drug overdoses in 2020. “This is not the time to make it more difficult to prosecute people profiting off of fentanyl and heroin,” the association said. 

However, Tina Nadeau, a defense attorney in Portland and the executive director of the Maine Association of Criminal Defense Lawyers, said that reasoning flies in the face of logic. 

“What I don’t understand, which I’ll never understand, is where have our laws gotten us as far as preventing deaths?” she said. “The current laws have done nothing, so for [prosecutors] to hang onto those laws with both hands for dear life and say we need them is ridiculous.”