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Courts and Crime

Should Heroin Possession Be a Felony in Maine?

A bill that would make possession of heroin a felony offense advanced in the Maine Senate Tuesday, even though supporters of the measure remained largely silent during a half-hour debate on the issue.

Opponents from both sides of the aisle argued that the get-tough approach to heroin possession would not be as effective as placing greater emphasis on treatment. But supporters maintain that without the threat of a felony, it’s hard to convince many drug users to seek treatment.

The potential of serving a 364-day jail sentence for possession of heroin might be enough to convince most people to stay away from the drug. But lawmakers who favor even tougher penalties for drug violators say opioid abusers have extraordinary dependencies that prevent them from confronting their addiction.

Sen. Tom Saviello, a Republican from Wilton, is among those backing a proposal to elevate possession of heroin to a Class C felony with a prison term of up to five years. But he was the only member of the Senate to speak in its favor.

“The reason I stand today to speak in favor of this proposal is because of my sheriffs,” Saviello says.

While the measure would downgrade possession of oxycodone pills to a misdemeanor, it would make possession of heroin, methamphetamine, fentanyl or more than 14 grams of cocaine a felony.

The bill is one of the few that Maine Attorney General Janet Mills and Gov. Paul LePage agree upon. Mills says tougher penalties could convince drug abusers to seek treatment. And Saviello agrees.

“Law enforcement can help direct addicts to treatment if they’re able to interact with them, and while it may seem harsh, a felony arrest is likely to work in a way that a summons will not,” Saviello says.

But Republican Sen. Roger Katz, an Augusta attorney, says while using the threat of a felony conviction as an inducement for abusers to enter a pretrial drug diversion program might work, there aren’t enough such programs in rural Maine.

“We’ll send them off to pretrial diversion,” Katz says. “Well, pretrial diversion doesn’t exist in most parts of the state of Maine. And what’s the point of offering someone pretrial diversion without a robust opportunity for drug treatment? Because we know that these people are going to fail once and maybe twice before they can finally get it.”

At a time when the Legislature is passing other bills that encourage treatment for drug abusers, Sen. Eric Brakey, an Auburn Republican, says the felony possession bill is a step backward, since it targets Mainers with addiction rather than drug traffickers.

“We know that 4 out of 5 cases of opiate addiction begins with pills,” Brakey says. “Under the majority report, someone who is addicted to pills would face a misdemeanor, but someone with the very same addiction who uses heroin would face an instant felony. Why should we punish one individual so much more punitively for the same crime of having the same addiction?”

Other opponents say current misdemeanor classification provides a more flexible tool for judges as they attempt to craft a response from the bench that encourages a path away from addiction.

And Sen. Stan Gerzofsky, a Brunswick Democrat, says the current possession penalty of nearly a year in jail and a $1,000 fine provides enough incentive for recovery without the lasting stigma of becoming a felon.

“With a felony, Mr. President, I’ll argue, they’re not able to straighten out their life because of that ‘F,’” Gerzofsky says. “You think it’s funny to put a scarlet letter on somebody’s head that’s going to stay with them for the rest of their life, well I don’t. I think it’s pretty darned serious when we have an option. We don’t have to pass this bill — we don’t have to put an ‘F’ on anybody’s head.”

But the Senate did pass the bill by a narrow 18-16 margin. The measure now moves to the House.