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Probation or prison? Nebraska wrestles with how it punishes fentanyl dealers

After Douglas County fentanyl dealer got probation, Omaha police union, Douglas County Attorney Kleine pursue mandatory minimum sentences
Posted at 6:23 PM, Sep 09, 2021
and last updated 2021-09-09 19:23:35-04

OMAHA, Neb. (KMTV) — Sixteen people, gone. Over the past month and a half, 10 people from Lincoln and another six from Omaha died of drug overdoses. Most died after using fentanyl, authorities say.

“It’s a manmade version of heroin,” said Darin Thimmesch, of the Omaha Division of the Drug Enforcement Agency. “It’s 50 times stronger than heroin, 100 times stronger than morphine.”

This synthetic opioid, which dealers are mixing with other illegal drugs, killed more than 6 in 10 of the 92,000 Americans lost last year to overdoses, the DEA says.

About a hundred of those lives were lost in Omaha, Omaha Fire Department records from 2020 show. As recently as 2016, local overdose deaths were less than half that number, 42.

“This is a big deal to society or should be a big deal to society,” said Sgt. Dave Bianchi, who leads the day shift narcotics unit for the Omaha Police Department. “It’s destroying lives.”

Bianchi is one of several in local law enforcement and politicians who’ve told 3 News Now Investigators that they want Nebraska law to get tougher on the people dealing fentanyl illegally.

Learn more: Fentanyl top killer drug in Omaha-area overdoses

The reason: People are dying of overdoses in Nebraska at rates most first responders say they’ve never seen. And that’s despite them reviving hundreds of opioid users with NARCAN, a nasal spray.

Authorities say they want state law to treat fentanyl like it does other hard drugs. Think heroin, meth and cocaine. They also say they want the law to recognize that it takes less fentanyl to kill.

“When a single dose of a hard drug like fentanyl can be placed essentially on the tip of a pencil, and also that can be a fatal dose, that’s a game-changer,” said Aaron Hanson, legislative liaison of the Omaha Police Officers Association. “Everything that we’re used to dealing with in terms of the drug game is thrown out the window.”

Lincoln State Sen. Suzanne Geist, a member of the Legislature’s Judiciary Committee, says she intends to propose stiffer penalties, including a mandatory minimum sentence of prison. She says she considers dealing fentanyl a “violent crime,” because of the number of fatal overdoses it’s causing.

“We need to step back, refocus, and be willing to take some steps to classify this differently, one, and put some real teeth in the penalties because this is causing havoc across the state,” Geist said.

She, Hanson, Bianchi and Douglas County Attorney Don Kleine say the legislature should assert itself so judges know what’s different and deadlier about fentanyl.

Related: NSP seizes 11 pounds of fentanyl, enough to kill about 2.5 million people, during I-80 stop

They say they’re seeing buyers of meth, cocaine and weed overdosing after using the amounts of those drugs they can usually handle because fentanyl is mixed in.

“I don’t think that the legal system has caught up to the danger that fentanyl is,” Bianchi said. “The people who are selling death to a broken, addicted person ought to be treated as such.”

Kleine said he would like to see Nebraska send a message like the state does to people using a gun to commit crimes and how it treats felons in possession of firearms. The first crime has a mandatory minimum sentence of five years. The second has a mandatory minimum of three.

ACLU Nebraska, which typically opposes mandatory minimum sentences, issued a statement Thursday saying state law already treats dealing fentanyl as a serious offense, a felony. It said the state shouldn’t make its prison crowding problem worse with a misguided choice.

“Every overdose death is undoubtedly a tragedy, but the answer to every drug-related public health challenge is not tying judges’ hands with more mandatory minimums,” said Adam Sipple, legal director of ACLU Nebraska. “We can advance our shared public safety goals by rejecting these failed ‘war on drugs’ approaches and instead choosing a public health response.”

Proponents of change say part of their frustration stems from the May sentencing of a local fentanyl dealer whom Bianchi says his drug investigators bought counterfeit fentanyl pills from and more.

Gary Kern pleaded no contest to three felony counts of dealing an exceptionally hazardous drug. Prosecutors, in a plea deal, dropped four additional charges.

Douglas County District Court Judge Tim Burns sentenced Kern to three years of probation. Hanson called the sentence inappropriate. Kleine said he and his prosecutor were surprised.

Related: DHHS bringing awareness to opioid abuse during Opioid Awareness Week

“A majority of our deaths, our drug toxicity deaths, are from fentanyl,” Kleine said. “We saw two deaths probably in the last month where I don’t think people realized that they were taking fentanyl.”

Hanson says the police union also wants Nebraska to lower how much fentanyl it takes to make someone a dealer eligible for mandatory minimum sentences under the law. He says they want small amounts sold separately to add up.

“The current mandatory minimum threshold for hard drugs is 10 grams,” Hanson said. “That’s 5,000 fatal doses of fentanyl. That doesn’t work. That math works against society.”

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