Missouri lawmakers push new charges for fentanyl dealers. Would that help the crisis?

In the days after she lost her daughter to fentanyl in June 2021, Jamie Fisher began calling Independence police to find out what the department was doing to investigate her death.

When she died, Samantha “Sami” Fisher, 23, had one photo on her new cellphone — which she had taken that day — of three pills that her family said she believed were Percocets. “My three little Percs,” she had written about the pills. In reality, they were fentanyl.

“I was calling twice a week and then I was calling two or three times a week and then I went down to once a week, and not one person called me back,” said Fisher who finally stopped calling later that summer. “It was almost like, ‘Well, she chose to take those (pills) so her life didn’t matter.’ That’s how I felt when they would not call me back.”

Fisher and some Missouri lawmakers are pushing for legislation that would allow new felony charges for people who knowingly deliver or sell drugs that result in serious injury or death, hoping that stiffer penalties may help reduce overdoses and deaths.

However, research published in the American Journal of Public Health has indicated that drug busts and police arrests on drug sellers could be making the overdose crisis worse, according to an NPR report in July.

“Making stricter laws is going to make these police officers actually communicate with us,” Fisher said. “These people (who distribute fentanyl) need accountability for what their actions are doing. I do believe that with this law even the police officers will have to be accountable.”

While lawmakers approved a version of the legislation this year, it failed when Republican Gov. Mike Parson vetoed a sweeping public safety package in July.

The massive bill, which also included money for those wrongfully convicted and workers compensation for first responders, received support from both parties, but some Democrats and health care professionals question whether new charges for those who sell drugs will help alleviate the problem.

“I am very frustrated,” state Rep. Bill Allen, a Kansas City Republican who sponsored a version of the bill, said of Parson’s veto. “We all agreed that we need to do something about fentanyl but when it came to it, he didn’t sign the legislation.”

Supporters of the legislation, who have vowed to bring the bill back next session in January, argue that it would give prosecutors a key tool to fight the rise in fentanyl-related deaths and overdoses. The drug — 50 times more potent than heroin, according to the Drug Enforcement Administration — has ravaged across the country, killing more than 850 people in the Kansas City region since 2018.

The bill would have made it a felony punishable by three to ten years in prison to knowingly deliver a controlled substance that’s mixed with another controlled substance if it results in “serious physical injury.” If the delivery of the controlled substance results in death, a person could face ten to thirty years or life in prison — a Class A felony, the most severe felony classification in Missouri.

In an ongoing investigation, The Star has exposed the toll fentanyl has taken on the nine-county Kansas City area since 2018. The series has detailed the trail of destruction this crisis has left behind and how no age, race or demographic has been spared. Many families The Star spoke to said they feel police have denied them justice.

When Parson vetoed the bill, his office said it was because of two unrelated provisions, including a section that would have allowed more people who were wrongfully convicted to receive compensation from the state. Spokesperson Johnathan Shiflett said in an email that Parson would “be happy to consider the better parts of the bill again next legislative session.”

However, some remain skeptical that adding more criminal charges for drug offenses would help stem the rise in fentanyl-related deaths and overdoses. Critics, including some health care professionals and Democrats, have pointed to the nation’s history of criminalizing users of drugs such as “crack” cocaine which disproportionately affected minorities.

“This is another manifestation of the drug war, which we know does not work,” said Rachel Winograd, an associate professor at the University of Missouri-St. Louis and the director of the addiction science team at the Missouri Institute of Mental Health.

“We have decades of evidence showing that punishment and incarceration — not only do they not help but they actively worsen outcomes not only for people who use drugs themselves but for their family and friends and neighbors and all those who are impacted by addiction and overdose.”

Allen said he plans to file a version of the legislation again on Friday, the first day that lawmakers can prefile bills for the next session.

Health professionals, Democrats skeptical of new charges

While a person who delivers fentanyl that results in a death can be charged with felony murder, the bill would have also allowed prosecutors to pursue charges against those who deliver drugs that injure someone — not requiring a death, said Jackson County Prosecutor Jean Peters Baker, who supported the legislation.

“We are experiencing a high level of death with individuals who are consuming a drug but they don’t know what they’re consuming,” Baker said. “Investigative bodies have been a little bit behind the number of what we consider overdose deaths, especially among teens.”

House Majority Leader Jonathan Patterson, a Lee’s Summit Republican, said that charging a person who distributed drugs that lead to a death with murder is “very hard to prove.”

“This would be another charge that they could add that would reflect the crime that these drug dealers have committed,” he said.

While the country’s harsh and costly approach to criminalizing drug use has been criticized for resulting in mass incarceration and lack of reforms, some critics worry about a resurgence — in which some lawmakers are now looking to increase penalties for distributing fentanyl.

State Rep. Maggie Nurrenbern, a Kansas City Democrat, said she understands where lawmakers and families of victims of fentanyl deaths are coming from — “if I was a mom, and this happened to my kid, I would want to throw the kitchen sink at the problem.”

But, she said, she’s skeptical that increasing penalties will solve the problem.

“I would rather Missouri take a more serious look at a lot of the underlying issues that are resulting in folks distributing drugs,” she said. “That goes back to making sure that we are truly and properly funding education and putting the support that we need towards jobs and health care and safe housing.”

A fiscal report from legislative staff for Allen’s original bill found that the Missouri Department of Corrections estimated that the new charge for delivering a drug resulting in injury would result in four people being sent to prison and six sentenced to probation each year.

The department, according to the report, estimated that the charge for delivering a drug resulting in death would result in only one person being sent to prison each year.

Doug Day, the spokesperson for KC CARE Health Center, a health care nonprofit based in Kansas City, said that while criminalization may offer a deterrent, it’s not necessarily a solution. More helpful legislation would include increased access to Naloxone, a drug that fights opioid overdoses, and increased funding for harm reduction and recovery programs, he said.

“Further criminalization of substances has historically forced individuals to seek out less-regulated and more-harmful substances,” Day said in a statement. “For example, fentanyl’s emergence occurred after criminalization of heroin.”

Winograd, with the Missouri Institute of Mental Health, said she understands that it’s tempting to want to find someone to blame for a public health crisis, but it’s not that simple. The public characterization of drug sellers is not accurate, she said.

“Most people who sell drugs also use drugs. Most people who use drugs also sometimes sell or share them,” she said. “This is a really overlapping population.”

There’s a rhetoric, she said, where there is more compassion for people who use drugs but “when it comes to drug dealers, they’re the bad guys, we need to lock them up and get them off their streets. But that’s not how it plays out in practice.”

More than 50% of the prosecutions of similar types of laws nationwide have been friends, family members or partners of the deceased individual, she said.

While Parson’s veto struck down the penalties for those who distribute drugs resulting in injury or death, he did sign a law this year that allows people to obtain and use fentanyl testing strips, intended to help prevent overdose deaths. The strips were previously classified as illegal drug paraphernalia.

A step towards solving the crisis?

Baker, the Jackson County prosecutor, acknowledged that “we did some things that were really harmful to particular communities with how we emotionally” went after users of crack cocaine. Prosecutors should use discretion when deciding when to pursue charges under the proposed law, she said.

There needs to be a two-prong approach to addressing the issue, which includes putting a high value on treatment and an arm for accountability and prosecution, she said.

“But to not put a penalty like this in place also ignores that there is a profit margin for some folks here — that for some folks who sell drugs to teens where they end up overdosing and dying, it may not have anything to do with an addiction for them,” she said.

Still, some remain skeptical of the legislation, including state Rep. Richard Brown, a Kansas City Democrat, who said he doesn’t believe it would help with the state’s drug addiction problems.

“I feel the state will be better served if we spent money on treating the addictions rather than focusing on incarceration of addicts,” Brown, who is running for lieutenant governor in 2024, said in a text message.

But, as the number of fentanyl deaths continues to rise, Allen, the bill sponsor, painted the legislation as an important step from lawmakers to try to solve the crisis.

“There is a lot that we could do at the state level,” he said. “We can’t wait for perfection to solve a crisis. We’ve got to jump in and start somewhere. I think this is a common sense legislative place to start.”

When the number of fentanyl deaths started to increase in 2019 to 2020 — and then first exploded in 2021 — the nation was in the throes of the COVID pandemic, Fisher said.

“My daughter wasn’t important at that time,” she said. The rise of the fentanyl epidemic “absolutely got lost in COVID.

“And if they would have spoken up about this, as much as they spoke up about COVID back in the day, when they started to be a problem, we could have saved so many lives.”

It’s why she hopes lawmakers in Missouri realize it’s time to do something now to curb the rise of fentanyl deaths.

“These people need to be held accountable for killing our relatives, our families, our loved ones,” Fisher said.