Alabama lawmakers approved legislation last month that allows prosecutors to charge someone with felony manslaughter if they sell or deliver synthetic fentanyl that causes someone to die.

But that is not what Alabama Gov. Kay Ivey signed into law on June 1.

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The governor’s office signed a previous version of HB82 into law that assesses the manslaughter charge on someone who furnishes any kind of controlled substance that causes a death. The drugs that are eligible include methamphetamines, cocaine, morphine, and heroin.

A glitch in newly implemented software used by the Legislature is being blamed for Ivey signing the wrong version of HB82. If nothing is done before September 1, the older version will become the new criminal law in Alabama and will include possible felony charges for fatal overdoses involving for several drugs.

“The introduced version broadly covered any controlled substance,” said John Treadwell, clerk of the Alabama House of Representatives. That’s where the software glitch occurred that prevented the transfer of the correct version of HB82 to Ivey’s office during the final days of the spring legislative session.

“As (the legislation) moved through the process, the final conference committee report included fentanyl and a mixture of fentanyl (only),” Treadwell said. “We are working with a new legislative (computer) system, and it reverted back to the (original) version of the bill that took out the language to include fentanyl.”

The glitch was first reported by Fox 10 in Mobile.

“We’ve gone back and checked other bills,” Treadwell said. “So far, this is the only one.”

“We did make sure to look at the other bills as well to make sure this isn’t an issue.”

An Ivey spokeswoman said the process of handling bills submitted to governor is the responsibility of the Legislature and she deferred all comments to them.

“It’s happened before,” Treadwell said. “In our prior system, there is more of a human error, and something mistakenly typed. If we caught it before it gets to the governor, there is an opportunity to correct that. But if the governor signs it, we are stuck with what we presented to the governor at that point. And if there is a substantive mistake, the safer course is to do a new bill.”

Special session fix

Rep. Chris Pringle, R-Mobile, who sponsored HB82, said he’s hopeful it will be reconsidered during a special session that is likely to occur this summer on redistricting. The special session looms after the U.S. Supreme Court ruled in a 5-4 decision last week that the state’s congressional maps, redrawn in 2020, violated Section 2 of the Voting Rights Act. Pringle was co-chairman of the state’s redistricting committee.

If no special session takes place, HB82 – the original version signed by Ivey, not the version OK’d by lawmakers late last month – becomes law on September 1.

Even then, Treadwell isn’t sure that would happen.

“It would be a legal determination,” he said. “There is some case law from the 1800s about what the governor signs is materially different from what was passed by the Legislature, then it doesn’t go into law. That becomes a legal question.”

Hectic days

If a special session does not take place, the earliest the bill can be corrected is next spring.

The computer glitch also tosses the hectic nature of the Legislature’s final days into the spotlight. Similar glitches have happened before, Treadwell admit, though he said “it’s pretty rare” for one version of legislation to be signed into law by a governor that is considered “materially different” from the original copy.

Pringle and Treadwell also blamed the glitch on the hectic nature of the final days of the spring legislative session. The waning days of session often see a larger number of bills being introduced, voted on, and passed through both legislative chambers.

“The last day of session is always dangerous,” Pringle said.

Said Treadwell, “It’s a perfect storm. At the end of session, so many bills are flying. And we are working to break in this new system.”

Fentanyl crackdown

Lawmakers are hopeful a corrected version of the legislation will eventually be approved and signed by Ivey.

State Rep. Matt Simpson, R-Daphne, said HB82 is important legislation in addressing a growing threat of fentanyl in Alabama.

Simpson sponsored HB1, approved by lawmakers in March and goes into effect on July 1, which makes it a mandatory sentence of three years in prison for anyone who knowingly possesses 1 gram or more of fentanyl.

“It’s a tool for law enforcement to make sure the person who brings fentanyl into our community that causes a death in our community can be prosecuted for causing this death,” Simpson said about HB82. Manslaughter, as a Class B felony, carries a state prison sentence of 2 to 20 years.

“This is just about a (punishing) a drug dealer who is caught selling drugs,” Simpson said. “But if you sell those drugs and it causes death, we can prosecute you for that.”

Overdose deaths, especially from illicit fentanyl use, have risen sharply in Alabama and across the country in recent years. The illegal use of fentanyl is considered far more powerful than heroin, where 2 milligrams is considered a potentially lethal amount – and where 1 gram has the potential to cause 500 deaths.