Fwd: SB100 Analysis

["Non-Partisan Delaware"]

============ Forwarded message ============
From: Will McVay <mcvay...@gmail.com>
To: "Zoe Patchell"<*******>
Cc: <in...@nonpartisande.org>
Date: Thu, 04 May 2023 00:23:25 -0400
Subject: SB100 Analysis
============ Forwarded message ============

SB100 adds 16 Del. C. § 4752(a)(1), manufacture, deliver, or possess with intent of a Tier 3 Controlled Substance to the list of "violent felonies" defined in 11 Del. C. § 4201(c).  I haven't looked into what other effects this has, but at a minimum it triggers provisions in 11 Del. C. § 4214 which allows the State to petition for the Court to classify a convicted offender as a "habitual criminal" subject to a life sentence.  While this bill is allegedly targeted at fentanyl (according to Buckson), 16 Del. C. § 4751C(1)(c) (by reference to 16 Del. C. § 4701(28)) includes cannabis ("marijuana") in its definition of a "Tier 3 Controlled Substance" (as referenced in 16 Del. C. § 4752(a)(1) above, the offense being made a "violent felony" under 11 Del. C. § 4201(c) and 11 Del. C. § 4214, etc.) at just over 11lbs (5000g).  This isn't a small amount of "illegal" cannabis but would be a slow day at a fully operational retail dispensary.

The difference between a habitual "violent" criminal facing a life sentence and a legitimate business cannot be a license.

An amendment specifically excluding 16 Del. C. § 4751C(1)(c) from the change in 11 Del. C. § 4201(c) would resolve this oversight.  Even better though would be adding 16 Del. C. § 4752(a)(1) to 11 Del. C. § 4201(c) only in the context of 16 Del. C. § 4751C(1)(b), or even more narrowly only in the context of 16 Del. C. § 4714(b)(60) if it's really only about fentanyl.  They could also adjust the Tiering system just so any amount of Fentanyl is automatically a Tier 3 Quantity since right now it's treated as an equivalent to heroin and morphine at 5g for Tier 3 (16 Del. C. § 4751C(1)(b)).  That would directly target the drug they're allegedly after with amped up penalties without playing these word games about voluntary (sort of) transactions being violent felonies.

Frankly, getting much further away from the existing bill, designating the inclusion of fentanyl in 16 Del. C. § 4714(b) "heroin", or any other controlled substance for that matter, as a "COUNTERFEIT substance" would be a better approach to this all together.  People don't typically buy a bunch of fentanyl on purpose.  They're trying to buy something else and it's cut with fentanyl since it's cheaper and more potent.