MAINE’S INCOHERENT DRUG POLICY WONDERLAND.

MAINE’S INCOHERENT DRUG POLICY WONDERLAND.

Posted by:  Edmund R. Folsom, Esq.

January 27, 2017

Tracing Maine drug law policy is a trip through Wonderland.  Let’s take a walk through the Wonderland of changes to the illegal drug possession statute, 17-A M.R.S. §1107-A, as that statute pertains to possession of oxycodone, heroin, fentanyl, and cocaine.  We could cover more drugs on our tour, and find even more to marvel at, but time is limited.  For this tour we’ll keep our focus solely on illegal possession of these particular 4 drugs.  On any given day, conduct that was a felony is now a misdemeanor.  On yet another day, the same conduct might be a felony again, or it might be a misdemeanor again.  Why, it’s almost as if the State’s lawmakers are just making up the policy as they go along.

Oycdodone.

All drugs discussed here, including oxycodone, are schedule W drugs.  Their illegal possession is criminalized by 17-A M.R.S. §1107-A.   Until August 23, 2006, oxycodone was not singled out for special treatment from the general category of schedule W dugs.  Simply possessing it was a Class D crime.  Class D crimes are punishable by a maximum jail sentence of 364 days and are commonly referred to as misdemeanors.  On August 23, 2006, simply possessing oxycodone (or the similar painkillers hydrocodone and hydromorphone) became a Class C crime. Class C crimes are punishable by up to 5 years of imprisonment and are commonly referred to as felonies.  If you had no prior drug convictions, and if you possessed a single oxycodone pill without a prescription on or before August 22, 2006, and if you were convicted of that offense, the State of Maine had the power to jail you for up to 364 days.  If, though, you had no prior drug convictions, and if you possessed a single oxycodone pill without a prescription on August 23, 2006, and if you were convicted of that offense, the State suddenly had the power to imprison you up to 5 years.  This increase from Class D to Class C always struck me as odd, given how freely doctors and dentists prescribed these drugs at that time.  On the one hand, we were awash in oxycodone and hydrocodone, because they were treated as relatively benign substances by medical providers, yet possessing a single pill without a prescription was a felony, the conviction of which carries lifelong stigma, the destruction of decent job prospects, and a lifetime ban on possessing firearms or ammunition. I always wondered why any first-offense possession of a small amount of oxycodone couldn’t be adequately addressed by up to 364 days in jail, up to a $2,000.00 fine, and/or probation.

In the past several years, we have witnessed increasing numbers of heroin/fentanyl overdose deaths.  In late 2016, the Portland Press Herald reported that drug overdose deaths in Maine were then averaging 1 a day.* Individual heroin users report, and studies show, that most users start down the path to addiction using prescription opioids (oxycodone is an opioid).   It turns out that fentanyl powder, either mixed with or substituted for heroin without the user’s knowledge, was responsible for many of the overdose deaths that were occurring at the time.  Seeing all these people, sometimes the next-door neighbor, dying of heroin overdoses caused the public to view users more sympathetically; more as victims than as criminals.  In this environment, effective October 15, 2015, the Maine Legislature passed PL 2015, c. 308, §2, “An Act to Reduce the Penalties for Certain Drug Offenses.”** This Act reduced the crime of simple, first-offense possession of oxycodone, hydrocodone and hydromorphone to Class D and left simple possession of fentanyl to remain a Class D crime.   Also effective October 15, 2015, however, the Maine Legislature enacted PL 2015, c. 346, §6, “An Act to Strengthen Laws Regarding the Manufacture and Sale of Methamphetamine and other Drugs.”*** This piece of legislation elevated simple possession of fentanyl powder from a Class D to a Class C crime, while leaving intact the provisions in 17-A M.R.S. §1107-A that made it a Class C crime to simply possess oxycodone, hydrocodone and hydromorphone.

As of October 15, 2015, then, simple first-offense possession of oxycodone remained a felony (under the Act to Strengthen), yet simple first-offense possession of oxycodone became a misdemeanor (under the Act to Reduce).  This state of affairs continued until July 29, 2016, when 17-A M.R.S. §1107-A was changed yet again, this time making simple first-offense possession of oxycodone, hydrocodone or hydromorphone a Class D crime, unless the amount possessed is more than 200 milligrams (twenty 10 mg or forty 5 mg pills), in which case it is a Class C crime.  If, though, the person has a prior drug conviction, possession of any amount is a Class C crime.

To recap, until August 23, 2006, simple first-offense possession of oxycodone was a Class D crime.  That day, it became a Class C crime, punishable by up to 5 years in prison, making anyone convicted of it a felon.  It remained a Class C crime until October 15, 2015, when it became a Class D crime again, except that it also remained a Class C crime.  Then, on July 29, 2016, it became (or remained) a Class D crime if the offense involved possession of 200 mg or less, but became (or remained) a Class C crime if the offense involved the possession of more than 200 mg.

Fentanyl Powder.

As mentioned above, fentanyl powder, either mixed with heroin or on its own, has caused the overdose deaths of a large number of unwitting users over the past few years.  Up until October 15, 2015, simple unlawful possession of fentanyl in any form was a Class D crime, regardless whether the person had a prior drug conviction and regardless of the amount possessed.  “An Act to Reduce the Penalties for Certain Drug Offenses” did nothing to change that.  However, under conflicting PL 2015, c. 346, §6, “An Act to Strengthen Laws Regarding the Manufacture and Sale of Methamphetamine and other Drugs,” simple unlawful possession of fentanyl powder became a Class C crime on October 15, 2015, regardless of the amount possessed or whether the person had a prior drug conviction.  Then, on July 29, 2016, first-offense possession of 200 milligrams or less of fentanyl powder became a Class D crime, but possession of more than 200 milligrams remained Class C.   For anyone with a prior drug conviction, possession of any amount of fentanyl powder became a Class C crime.  For a first-offender who possessed 200 mg. or less of fentanyl powder, it was particularly bad to commit that conduct during the approximately 9-month period from late 2015 to mid-2016 when it was a Class C crime.

Heroin.

Until October 15, 2015, simple possession of heroin was a Class C crime, regardless whether the person had a prior drug conviction and regardless of the amount possessed.  As discussed above, in the midst of the spike in heroin overdose deaths, on October 15, 2015, PL 2015, c. 308, §2, “An Act to Reduce the Penalties for Certain Drug Offenses,” became effective.  Under this legislation, simple possession of heroin became a Class D crime regardless of the amount possessed, unless the person had a prior drug conviction in which case it was Class C.   Under conflicting PL 2015, c. 346, §6, “An Act to Strengthen Laws Regarding the Manufacture and Sale of Methamphetamine and other Drugs,” simple possession of heroin remained a Class C crime, regardless whether the person had a prior drug conviction and regardless of the amount possessed.  In other words, simple first-offense possession remained a felony at the same time it became a misdemeanor.  Then, on July 29, 2016, simple first-offense possession of heroin was made a Class D crime for those who possess 200 milligrams or less, but a Class C crime for those who possess more.  Ever since that date, for those with a prior drug conviction, possession of any amount of heroin is Class C.

Cocaine.

A walk down this twisted path requires separate looks at powder cocaine and cocaine base (crack).  Up until October 15, 2015, simple possession of powder cocaine was a Class D crime, regardless of the amount possessed or whether the person had a prior drug conviction, as long as the amount possessed was 14 grams or less.  If the amount possessed was more than 14 grams, the offense was Class B (punishable by up to 10 years in prison) regardless whether the person had a prior drug conviction.  Cocaine base was treated differently.  First-offense possession of cocaine base was Class D, unless the amount possessed was more than 4 grams, in which case the offense was Class B.  For anyone with a prior drug conviction, possession of any amount of cocaine base was a Class C crime.

On October 15, 2015, under PL 2015, c. 308, §2, “An Act to Reduce the Penalties for Certain Drug Offenses,” it remained a Class D crime simply to possess 14 grams or less of powder cocaine, regardless whether the person had a prior drug conviction.  It also remained a Class D crime for a person with no prior drug conviction to possess 4 grams or less of cocaine base, and a Class C crime for a person who had a prior drug conviction to possess any amount of cocaine base.  Under this legislation, however, the Class B crime of possessing more than 14 grams of cocaine powder or 4 grams of cocaine base became applicable only to those who had a prior drug conviction.  This reduced it from Class B to Class D for a first-time drug offender to possess more than 14 grams of powder cocaine or more than 4 grams of cocaine base.  On the other hand, under PL 2015, c. 346, §6, “An Act to Strengthen Laws Regarding the Manufacture and Sale of Methamphetamine and other Drugs,” conflicting changes were made to the penalties for possessing cocaine.  As discussed immediately above, “An Act to Reduce the Penalties for Certain Drug Offenses” made it a Class B crime to possess more than 14 grams of powder cocaine or 4 grams of cocaine base only for those with a prior drug conviction.  But where “An Act to Reduce the Penalties for Certain Drug Offenses” made it a Class D crime for a first-time drug offender to simply possess more than 14 grams of powder cocaine or more than 4 grams of cocaine base, “An Act to Strengthen Laws Regarding the Manufacture and Sale of Methamphetamine and other Drugs” made it a Class C crime for a first-offender to possess 7 grams or more of powder cocaine or 2 grams or more of cocaine base (You might notice that, although “An Act to Reduce the Penalties for Certain Drug Offenses” set the cut-off for Class B possession of powder cocaine and cocaine base at “more than” 14 and 7 grams, respectively, “An Act to Strengthen Laws Regarding the Manufacture and Sale of Methamphetamine and other Drugs” set the cut-off for Class C possession without a prior conviction at “7 grams or more” and “2 grams or more,” respectively—just another curiosity).   Under “An Act to Strengthen Laws Regarding the Manufacture and Sale of Methamphetamine and other Drugs,” simple first-offense unlawful possession of less than 7 grams of powder cocaine or 2 grams of cocaine base remained Class D.  That was the state of affairs for a little more than 9 months.

On July 29, 2016, the penalties for possession of powder cocaine and cocaine base were changed again.  Under the current legislation, it remains a Class B crime for a person with a prior drug conviction to possess more than 14 grams of powder cocaine or more than 4 grams of cocaine base.  For those who have no prior drug conviction, simple possession of powder cocaine is a Class D crime if the amount is 2 grams or less.  It is a Class C crime if the amount is more than 2 grams.  Also, for those without a prior drug conviction possession of cocaine base is a Class D crime if the amount possessed is 2 grams or less.  Possession of more than 2 grams of cocaine base is a Class C crime.  For any person with a prior drug conviction, possession of either powder cocaine or cocaine base is a Class C crime unless, again, the amount possessed is more than 14 grams of powder cocaine or 4 grams of cocaine base, in which case it is a Class B crime.

The drug possession statute continues to treat powder cocaine and cocaine base differently for purposes of those with prior convictions, making it a Class B crime to possess more than 14 grams of powder cocaine versus only something more than 4 grams of cocaine base.  However, that disparate treatment disappears for the offense of Class C possession based solely on the amount possessed.  Whereas, in 2015, “An Act to Strengthen Laws Regarding the Manufacture and Sale of Methamphetamine and other Drugs” made it a Class C crime to possess 7 grams or more of powder cocaine or 2 grams or more of cocaine base, current law draws the Class C line at possession of more than 2 grams of either form of the drug.

So, during the time we went from classifying possession of up to 14 grams of powder cocaine as a Class D crime, regardless whether the person has a prior drug conviction, to classifying possession of more than 2 grams as a Class C crime for a person with no prior convictions, we simultaneously went from classifying the possession of any amount of heroin a Class C crime to classifying the possession of up to 200 milligrams of heroin as Class D.   Decreased penalties for heroin; increased penalties for powder cocaine; possession of cocaine base at times punished more severely than possession of powder cocaine, yet at other times punished the same…  Why is possession of more than 2 grams of powder cocaine by a person with no prior drug convictions now a Class C crime?  Why was it sufficient to treat the possession of up to 7 grams of powder cocaine as Class D during part of 2015-2016, and up to 14 grams as Class D before that, but now wise or necessary to punish the possession of more than 2 grams as Class C?  Why is it no more serious for a person without a prior drug conviction to possess 2 grams of cocaine base than to possess 2 grams of powder cocaine?  If parity there makes sense, why does a person who has a prior drug conviction have to possess something more than 14 grams of powder cocaine to commit Class B possession, yet only have to possess something more than 4 grams of cocaine base to commit the same offense?

Maine’s drug policy is incoherent.  It’s as if a drunk person has taken control of an aircraft and won’t stop tweaking the knobs and levers at random.  If that seems harsh, survey the history again and tell me it deserves respect.  Stop the madness!

*pointhttp://www.pressherald.com/2016/11/14/drug-overdose-deaths-surge-in-maine-through-first-nine-months-of-2016/
** http://lldc.mainelegislature.org/Open/Laws/2015/2015_PL_c308.pdf

*** http://lldc.mainelegislature.org/Open/Laws/2015/2015_PL_c346.pdf



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