DAs back bill to make murder charge easier in fentanyl deaths

A group of California district attorneys on Wednesday rallied behind a bill that aims to make it easier to bring murder charges against people who cause a death by distributing or selling fentanyl.

The proposed law, SB 350, failed to pass the Senate's Public Safety Committee for the second time Tuesday.

Critics of the bill argue it is an attempt to use incarceration as the solution for societal problems.

Sen. Melissa Melendez, R-Lake Elsinore, who introduced the bill in 2020, plans to reintroduce it again this year, her chief of staff, Jared Yoshiki, said.

The bill would require a court to provide a written advisory to a person convicted of certain drug crimes, warning of the danger of manufacturing and distributing drugs containing fentanyl and of their potential liability if a person dies as a result. The advisory would help to establish implied malice in a subsequent murder charge and is similar to a "Watson" advisement given to drivers convicted of driving under the influence.

Two news conferences were held simultaneously in Northern and Southern California and included District Attorneys Anne Marie Schubert of Sacramento, Lisa A. Smittcamp of Fresno, Jeffery W. Reisig of Yolo, Morgan B. Gire of Placer, Jason M. Anderson of San Bernardino, Todd A. Spitzer of Orange and Michael A. Hestrin of Riverside counties, as well as Melendez, victims and law enforcement officials.

"It is finding its way into all illicit drugs on the street. It is almost impossible to avoid fentanyl now if you are using or selling illicit drugs," Hestrin said. "The DEA estimates that 40% of counterfeit pills on the street contain a fatal dose of fentanyl. This is life or death for our communities ..."

Riverside is one of many counties that implemented this advisory last year in fentanyl cases. SB 350 would expand the advisory to all 58 counties.

Additionally, many of the counties with advisories have also been implementing public safety advisories to warn of the dangers of the synthetic opioid.

The latest statistics available from the California Overdose Dashboard cite 3,946 confirmed overdose deaths involving fentanyl in 2020. Data on 2021 has yet to be published.

Sacramento County from 2020 to 2021 recorded more fentanyl deaths than homicides involving firearms, Schubert said.

"We are doing everything we conceivably can to raise the alarm that this is in fact an epidemic," Schubert continued. "Our efforts in the Legislature are to hold people accountable. When you are selling large quantities of fentanyl you should be held to a higher standard. ... When we start talking about saving lives, we have to be willing to have public safety policies that are behind that..."

In addition to SB 350, SB 75 by Sen. Patricia Bates, R-Laguna Niguel, was also unsuccessful in the Public Safety Committee on Tuesday. The bill aims to increase sentences for drug crimes involving fentanyl.

Those against the passage of SB 350 include the California Attorneys for Criminal Justice, the San Francisco Public Defender's office and the California Public Defenders Association.

"The advisory would be used as a predicate to establish the mental state of malice ... when the person involved in the drug transaction had no intention of ever killing or injuring the person who knowingly obtained the controlled substance," the defenders association wrote in an argument in opposition.

"SB 350, by creating another basis for a murder charge, is an attempt to resurrect the failed public policy of the past and return to mass incarceration as a solution for societal problems," the statement read.

According to the public defenders, many of those who engage in the illegal drug trade are low level users themselves and to punish them for unintended consequences of their narcotic sales is contrary to "sound public policy and humane treatment in our criminal justice system."