Since the onset of the COVID-19 pandemic, the Baldwin County Coroner’s Office has seen a dramatic shift in the type of deaths occurring within one of the state’s fastest-growing counties.

Since 2020, there are anywhere between 60 to 80 overdose deaths within Baldwin County, an increase of well over 200% since the 2014–2017-time frame. And a majority of those deaths, are from deadly fentanyl.

“It’s a toxic fatal level of fentanyl in their system mixed in with heroin, meth, cocaine,” said Dr. Brian Pierce, the county coroner.

He added, “I believe the argument could be made that your typical heroin addict is getting fentanyl, and he’s being poisoned. It’s making it a very deadly combination.”

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The rise of overdose deaths attributed to fentanyl is shaping up to be an early major issue during this spring’s legislative session in Montgomery, which kicks off March 7.

One of the state’s earliest pre-filed bills is from state Rep. Matt Simpson, R-Daphne. It would impose mandatory minimum sentences on criminal trafficking, distributing or knowingly possessing fentanyl.

The penalties are stiff and – if enacted – would give Alabama the harshest sentences against fentanyl traffickers, according to the draft legislation and an analysis by the Baldwin County Legislative Delegation’s office.

The penalties apply to anyone who knowingly “sells, manufactures, delivers” or who also “knowingly possesses” more than 1 gram of fentanyl.

Alabama law currently does not apply specific prison sentences to fentanyl distribution.

Under Simpson’s proposal, which he first announced during a news conference in September, anyone found guilty of trafficking more than 8 grams of fentanyl faces life imprisonment. Trafficking 1 to 2 grams of fentanyl carries a mandatory minimum sentence of 3 years in prison, according to Simpson’s draft proposal.

The legislation is sparking an early debate over whether the mandatory minimum sentences will continue to add more prisoners to Alabama’s already overcrowded prisons that remain under federal scrutiny for their unsafe environments.

“If history is any indication, adding mandatory minimums for fentanyl abuse will not reduce its prevalence or illegal use,” said JaTaune Bosby Gilchrist, executive director of the ACLU of Alabama. “Instead, forcing judges to sentence more people to prison regardless of their situation will make our prisons more crowded and more dangerous.”

‘Poison’ ‘Murder’ ‘Violent crime’

Simpson and proponents of the legislation, which includes law enforcement, argue the increased penalties address what they say is “poison” often killing a drug user who does not realize they are ingesting fentanyl.

That was the case on August 31, when 15-year-old Adrianna Taylor of Semmes died from a suspected fentanyl overdose. Authorities said that Taylor died after snorting fentanyl given to her by a boyfriend, who was allegedly unaware she was ingesting a lethal substance.

Federal authorities consider fentanyl a synthetic opioid “100 times” more powerful than morphine. Even the smallest amounts carry lethal potential. According to Simpson, small amounts – about 1 gram, or the equivalent of a packet of Sweet and Low – has the potency to kill 500 people.

“I’ve heard the argument that people say we are putting more people in prison and making them more overcrowded than they are,” Simpson said. “My response is that some people need to be put into prison. These traffickers of death are killing people in our community. It’s one of the state’s fundamental objectives to make sure the public is safe. If this costs us money, it costs us money.”

Mobile County Sheriff Paul Burch likens a fentanyl trafficking that results in a death to “murder.”

“They are putting poison on the streets they know could kill someone,” he said. “I would classify it as a violent crime.”

The deadly drug is also creating a risk for law enforcement. According to Baldwin County Sheriff Huey “Hoss” Mack, five of his deputies have had to use Narcan – the brand name for naloxone, a medicine that rapidly reverses an opioid overdose – simply because they were in contact with fentanyl.

“We consider it our No. 1 drug problem and the No. 2 drug problem in Baldwin County is fentanyl and meth combined,” said Mack, who would like to see the mandatory minimum made even more stricter than what Simpson’s legislation proposes.

The drug is so deadly that even the tiniest amounts of 2 milligrams, when manufactured illegally, can kill someone.

“I would also like to see the United States Congress declare the drug cartels as a terrorist organization,” said Mack. “This would allow the federal government to get even more involved in the pursuit of the drug cartels and traffickers who … are a major source of bringing fentanyl across our border.”

Strict punishment

Simpson said he believes Interstate 10, which extends from Texas to Florida, is a major pipeline for drug distribution, including fentanyl. But he said the issue is a statewide concern, citing the drug’s presence in the Tennessee Valley and beyond.

Recent statistics illustrate a troublesome pattern of skyrocketing fentanyl deaths in Alabama, and drug treatment center admissions. In Jefferson County, deaths attributed to fentanyl overdoses rose 223% between 2019 to 2021.

Simpson said his bill aims strictly at the traffickers, and not those found unknowingly in possession of fentanyl.

The legislation is not similar to another state’s sentencing guidelines. The Baldwin County analysis shows a variety of sentencing terms for trafficking fentanyl. Georgia, in 2020, classified fentanyl as a Schedule II drug and imposes a 5-year prison sentence for people trafficking 4-14 grams. In Florida, a 2021 law imposes a prison term of 3 years for anyone trafficking 4-14 grams.

The Alabama legislation could lead to the stiffest law in the country. Few states, for instance, impose a life sentence for knowingly possessing or distributing fentanyl. Oklahoma, according to the county’s analysis, imposes a sentencing range of 2 years to life imprisonment if someone is caught trafficking 5 grams or more, according to the Baldwin County review.

It’s unclear what the impact of the new legislation will be on Alabama’s prisons.

Bennet Wright, executive director of the Alabama Sentencing Commission, said his agency is often contacted to analyze similar legislation. But he said an analysis on drug-related bills in Alabama can be difficult because the controlled substances penalties cover a wide swath of drugs.

He said an analysis on Simpson’s proposal would be difficult in a short time frame.

“Why is that a tall task to do in a short time frame? It’s because, in Alabama, 4,000 to 6,000 people are convicted each year on an unlawful possession of controlled substance (penalty),” Wright said. “That’s a lot of files to cull through to find out the type of controlled substances, and that is a lot to go through to determine quantity.”

He added, “There is no way to absolutely determine what really the effect of this bill will be because it’s difficult to isolate and determine the people who are historically convicted of possessing fentanyl and how much fentanyl they have.”

Simpson anticipates the bill, which he hopes is given the attention-getting “HB1,” will be assigned to the Alabama House Judiciary Committee. He said it has the backing of the Alabama District Attorneys Association and Attorney General Steve Marshall’s Office.

“The session kicks off on March 7, and I hope this will be one of the first bills to go through to committee,” Simpson said.

‘Rehabilitative approach’

But before the legislation advances, it’s likely to receive some objections. Among the the organizations expressing concern is the ACLU, which has released annual reports in recent years critical of the Legislature’s focus on legislation they believe adds more people into an already overcrowded prison system.

According to its 2022 analysis, of the 873 bills introduced last session, 17% – or 148 – focused on increasing criminal or civil penalties or criminalizing certain behaviors.

Those bills surfaced at a time of continued federal scrutiny of Alabama’s state prison system, which has long been beleaguered with overcrowding and high rates of violence leading to dangerous conditions. The U.S. Department of Justice has an ongoing lawsuit against Alabama over the state of its prisons. Lawmakers, last summer, diverted $400 million in COVID-19 relief funds to build three new mega-prisons.

Said Gilchrist, “We would encourage lawmakers to explore a more comprehensive, rehabilitative approach to reducing addiction and substance use.”

Jenny Carroll, a professor at the University of Alabama School of Law and a former criminal defense attorney, said she is worried that adding more mandatory minimum sentencing in Alabama will lead to an aging prison population. An older population requires more funding to care for, she said.

According to the Prison Policy Initiative, Alabama’s incarceration rate is 938 per 100,000 people. That is much higher than the U.S. average of 664 per 100,000.

The state’s incarceration rate is the fifth highest in the nation. Louisiana is No. 1, with 1,094 people incarcerated per 100,000 residents.

“When I was in practice as a defense attorney, I saw this occurring with opioids where people were sentenced with distributing it,” Carroll said. “But it didn’t solve the underlying problem and you ended up with overcrowded prisons and not addressing the problem.”

Carroll said she believes the proposal is aimed at legislating “out of fear” and removes the nuances out of individualized situations that could be better addressed other than with lengthy incarcerations.

“I’m not saying that it is not wrong to be afraid,” Carroll said. “This is a drug that we know causes death and is highly addictive. I understand all of that, and I’m not trying to minimize it.”

She added. “But I think it’s worth to speak out to propose other solutions that address the concerns. With mandatory minimums, the decision-making power is taken away from a judge and it rests the power with the police and the prosecutor’s hands who make the decisions on who to investigate and what to charge them with.”