Enhanced penalties for controlled substance death, severe injury advanced

After two days of debate, senators gave first-round approval Feb. 22 to a bill that would enhance penalties for certain charges related to manufacturing or delivering controlled substances when doing so results in death or serious bodily injury.

LB137, sponsored by Lincoln Sen. Carolyn Bosn, would enhance the penalty to the next higher penalty classification, not to exceed a Class IB felony. A Class IB felony carries a penalty of 20 years to life imprisonment.

The bill, initially introduced by former Lincoln Sen. Suzanne Geist, was inspired by Taryn Griffith, Bosn said, a young mother who died in 2021 after unknowingly taking fentanyl-laced pain medication given to her by a coworker.

Bosn said enhancing penalties is one part of a comprehensive approach to a growing drug overdose problem in Nebraska. Between 2018 and 2022, she said, 256 Nebraskans died from poisonings and overdoses due to fentanyl and other synthetic opioids.

“This bill is a step in the right direction for Nebraska in terms of addressing and attacking the fentanyl crisis that we are dealing with,” Bosn said. “We have lost too many young people in this state — and middle-aged people, quite frankly — to a death resulting from the use of a controlled substance that is so much more dangerous than any other controlled substances out there.”

Omaha Sen. Justin Wayne opposed the measure, arguing it fails to consider the issue of the intent behind a crime. In many instances, individuals — including those who share or sell drugs — do not know that they contain fentanyl, Wayne said.

He argued that not only would LB137 fail to prevent fentanyl overdoses from happening, it instead could be used by prosecutors to go after individuals who did not intend to harm others.

“We’re reacting to a situation, but we’re not actually addressing the situation that we’re trying to react to,” Wayne said.

Sen. Terrell McKinney of Omaha also spoke against the measure. He cited studies that have shown a direct correlation between the Legislature enacting enhanced criminal penalties and Nebraska’s overcrowded prison population.

In addition, McKinney said, the crack epidemic of the ‘80s and ‘90s, and subsequent “war on drugs” that followed, resulted in a criminalization of addiction that disproportionately affected people of color. He warned that LB137 could have a similar effect by incarcerating people who ultimately need resources and support — including those who sell drugs.

“Some people who you deem as dealers are also addicts,” McKinney said. “They’re dealing with addiction themselves.”

Lincoln Sen. Danielle Conrad opposed the bill, which she said would not address the root causes of addiction and is unnecessary. Under current Nebraska law, she said, individuals already can be charged with manslaughter for providing drugs that cause death or injury — a crime that can result in up to 20 years of imprisonment.

Sen. Rick Holdcroft of Bellevue spoke in support of the bill and pushed back on the argument that enacting LB137 would exacerbate prison overcrowding. Neighboring states with similar laws — such as Kansas, Missouri and Wyoming — don’t have overcrowded prisons, he said, because they have more correctional facilities.

“You have two solutions to our overcrowding situation in Nebraska,” Holdcroft said. “One [is to] build more prisons — that’s not ideal, I agree — and also try to reduce recidivism or try to help with reentry.”

Brainard Sen. Bruce Bostelman also supported the bill, saying lawmakers also are addressing criminal justice reform through drug and problem-solving courts. Those courts, which were expanded by the Legislature in 2023, he said, have proven effective in reducing recidivism and helping people turn their lives around.

“Problem-solving court is a huge part of helping individuals get over their addiction, keeping them out of our jails and making them productive individuals in our society,” Bostelman said.

Lawmakers approved a Judiciary Committee amendment on a vote of 34-1 that would limit the penalty enhancement to a Class IC felony, which carries a 5 to 50-year mandatory minimum prison sentence.

After also adopting a Wayne amendment that would narrow the applicability of the penalty enhancement to cases where the supplied drug was the “direct and proximate” cause of injury or death, lawmakers advanced LB137 to select file on a 35-2 vote.