CONTENT

Senate Bill 430 would amend the Public Health Code to modify criminal penalties for violating the prohibition against manufacturing, possessing, prescribing, or dispensing for non-legitimate purposes a Schedule 1 or 2 controlled substance. Specifically, penalties would be differentiated depending on whether the violation involved substances like heroin, fentanyl, or carfentanil (see BACKGROUND).

Senate Bill 431 would add sentencing guidelines to the Code of Criminal Procedure to include the modified penalties proposed in Senate Bill 430.

Senate Bill 432 would amend Chapter XI (Probation) of the Code of Criminal Procedure to specify that a defendant who violated the most minor prohibition proposed in Senate Bill 430 could be sentenced to probation

Senate Bills 431 and 432 are tie-barred to Senate Bill 430. Each bill would take effect 90 days after its enactment. Senate Bills 430 and 432 are described in further detail below.

Senate Bill 430

The Public Health Code prohibits a person from manufacturing or possessing to manufacture, and a practitioner from prescribing or dispensing for non-legitimate purposes, a controlled substance. The Code prescribes penalties for a violation of the prohibition and bases their severity on the type and amount of controlled substance involved in the violation.

If the drug involved in a violation is a controlled substance classified as Schedule 1 or 2 that is a narcotic drug or cocaine or its derivatives, the Code prescribes the penalties in Table 1.

Table 1

Amount (in Grams)	Penalty	Maximum Fine	Maximum Term of Imprisonment
1,000 or more	Felony	$1.0 million	Life
Between 450 to 999	Felony	500,000	30 years
Between 50 and 449	Felony	250,000	20 years
Less than 50 grams	Felony	25,000	20 years

The bill would modify the penalties prescribed above according to whether the specific Schedule 1 or 2 substance involved in the violation contained heroin, fentanyl, carfentanil, or any derivatives of such. Under the bill, if the drug involved in a violation were a controlled substance classified as Schedule 1 or 2 that was a narcotic drug or cocaine or its derivatives, the penalties would be as described in Table 2.

Table 2

Amount (in Grams)	Containing heroin, fentanyl, carfentanil?	Penalty	Maximum Fine	Maximum Term of Imprisonment
1,000 or more	Yes	Felony	$1.0 million	Life
1,000 or more	No	Felony	1.0 million	30 years
Between 450 to 999	Yes	Felony	500,000	30 years
Between 450 to 999	No	Felony	500,000	20 years
Between 50 and 449	Yes	Felony	250,000	20 years
Between 50 and 449	No	Felony	25,000	20 years
Less than 50 grams	Yes	Felony	25,000	20 years
Less than 50 grams	No	Felony	25,000	10 years

Senate Bill 431

Under Chapter XI the Code of Criminal Procedure, a court may place a defendant on probation in all criminal prosecutions for violations other than murder, treason, criminal sexual conduct, armed robbery, or major controlled substance offenses if the defendant has been found guilty but the court determines that defendant is unlikely to engage in the criminal behavior again.

Under the bill, a defendant who violated the prohibition against manufacturing, possessing, prescribing, or dispensing for non-legitimate purposes a Schedule 1 or 2 controlled substance that did not contain heroin, fentanyl, carfentanil, or such derivates in an amount less than 50 grams could be sentenced to probation for the violation.

MCL 333.7401 (S.B. 430)

777.13m (S.B. 431)

771.1 (S.B. 432)

PREVIOUS LEGISLATION

(This section does not provide a comprehensive account of previous legislative efforts on this subject matter.)

Senate Bills 430, 432, and 431 are respectively similar to House Bills 4243, 4244, and 4245 from the 2021-2022 Legislative Session. House Bills 4243 through 4245 passed the House and were reported by the Senate Committee on Judiciary and Public Safety but received no further action.

BACKGROUND

Generally, Schedule 1 drugs are considered to have high potential for abuse and no accepted medical use, and Schedule 2 drugs are considered to have a high potential for abuse that may lead to dependence but some accepted medical use.¹ Among other substances, Schedule 1 and Schedule 2 drugs include opiates and opium derivatives, with opiates such as heroin classified as Schedule 1 and morphine classified as Schedule 2. Fentanyl and carfentanil are synthetic opiates. Fentanyl is classified as a Schedule 2 drug, as it is approved as a prescription pain medicine, but is prominent and dangerous in the illicit drug market. Carfentanil has no Schedule in Michigan law, but is a Schedule 2 drug federally.

Legislative Analyst: Tyler VanHuyse

FISCAL IMPACT

Senate Bill 430

The bill would have an indeterminate, but likely negative fiscal impact on the State and local governments. The bill could result in additional felony arrests and convictions increasing resource demands on law enforcement, court systems, community supervision, jails, and correctional facilities; however, it is unknown how many people would be prosecuted under the proposed provisions. The average cost to State government for felony probation supervision is approximately $5,100 per probationer per year. For any increase in prison intakes the average annual cost of housing a prisoner in a State correctional facility is an estimated $50,100. Per diem rates range from $106 to $328 per day (average per diem is $135), depending on the security level of the facility. Any associated increase in fine revenue would increase funding to public libraries.

Senate Bill 431

The bill would have no fiscal impact on local government and an indeterminate fiscal impact on the State, in light of the Michigan Supreme Court's July 2015 opinion in People v. Lockridge, in which the Court ruled that the sentencing guidelines are advisory for all cases. This means that the addition to the guidelines under the bill would not be compulsory for the sentencing judge. As penalties for felony convictions vary, the fiscal impact of any given felony conviction depends on judicial decisions.

Senate Bill 432

The bill could result in additional costs to the State for providing probation supervision. The bill would allow certain defendants to be sentenced to probation instead of a jail sentence if the violation did not involve a substance that was heroin, fentanyl, carfentanil, or any derivatives thereof. The average annual cost to the Department of Corrections for felony probation supervision services is $5,800. The cost is partially offset by the requirement that defendants pay the Department a supervision fee of $30 per month if not tethered or $60 per month if required to wear a tether. The supervision fees are capped at 60 months for defendants, thus the additional cost to the Department is indeterminate, would depend on the number of actual violations, and would be the difference between the cost of supervision for the Department minus the supervision fees collected from defendants.

Fiscal Analyst: Joe Carrasco, Jr.

Michael Siracuse

SAS\S2526\s430sa

This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent.