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1 S.119
2 Introduced by Senators Vyhovsky, Bray, Gulick, Hashim, MacDonald,
3 McCormack, Perchlik, Ram Hinsdale, Watson, White and
4 Wrenner
5 Referred to Committee on
6 Date:
7 Subject: Regulated drugs; decriminalization of personal use supply
8 Statement of purpose of bill as introduced: This bill proposes to change the
9 penalties for possession of a personal use supply of drugs from a misdemeanor
10 or low-level felony to a civil offense subject to a $50.00 penalty. A person
11 cited for such an offense may avoid paying the penalty by agreeing to
12 participate in a screening for substance use disorder treatment and related
13 services. The bill would also establish the Drug Use Standards Advisory
14 Board for the purpose of determining the benchmark personal use dosage and
15 the benchmark personal use supply for regulated drugs with a goal of
16 preventing and reducing the criminalization of personal drug use. Individuals
17 previously arrested for or convicted of possession of a regulated drug in an
18 amount under the benchmark personal use supply amount would also be
19 eligible for immediate sealing of criminal history records. Additionally, to
20 prevent overdose, the bill would also authorize the operation of drug-checking
21 programs to allow individuals to obtain analysis of a regulated drug previously VT LEG #367687 v.1
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1 obtained by an individual for purposes of determining the chemical
2 composition of the substance and identifying chemical contaminants. The bill
3 would establish a pilot project to support the development and operation of
4 such programs.
5 An act relating to a public health response to drug use
6 It is hereby enacted by the General Assembly of the State of Vermont:
7 Sec. 1. FINDINGS
8 The General Assembly finds that:
9 (1) Fatal and nonfatal drug overdoses in Vermont are an urgent public
10 health crisis, with rates of overdose deaths rising sharply in recent years. Drug
11 overdose reportedly killed 251 Vermonters 2021, nearly a 35 percent increase
12 from the prior year and well over double the number of deaths occurring in
13 years preceding the pandemic. Nonfatal opioid overdose emergency
14 department visits have also been increasing. From 2018 to 2021, 1,631
15 individuals visited an emergency department for an opioid overdose.
16 (2) Research has consistently shown that public health strategies are
17 effective at reducing overdose deaths, reducing the transmission of infectious
18 diseases, and improving health outcomes for individuals who use drugs.
19 (3) Investments in criminal justice approaches have proven ineffective
20 in reducing overdose. Despite more than 10,000 arrests for drug possession VT LEG #367687 v.1
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1 offenses since 2010, fatal drug overdoses have continued to rise during this
2 period.
3 (4) The medical and public understanding that addiction is a chronic
4 brain disease has increased in recent years, yet Vermont’s laws have continued
5 to reflect a punitive criminal justice model that has been ineffective in
6 improving public health and has itself caused extensive harm.
7 (5) The criminalization of drug use has profoundly negative impacts on
8 individuals, families, and communities. The stigma of a criminal arrest or
9 conviction often results in detrimental psychological and economic impacts on
10 the lives of those arrested. Involvement in the criminal legal system can
11 interfere with employment, housing, educational opportunities, and
12 professional licensing and lead to burdensome debt from fines. According to a
13 2020 report by the Brennan Center for Justice, individuals convicted of a
14 misdemeanor have their annual earnings reduced by an average of 16 percent.
15 Arrests and prosecutions can also further traumatize individuals who were
16 previously experiencing pain or suffering from prior traumatic events or
17 circumstances.
18 (6) Studies have also repeatedly found that periods of incarceration
19 substantially increase the risk of fatal overdose. Within the first two weeks of
20 release from incarceration, an individual is substantially more likely to die
21 from a fatal overdose than a person who was not detained.
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1 (7) Enforcement of the drug laws in Vermont, as well as nationally, also
2 falls disproportionately on persons of color despite similar rates in usage and
3 sale of drugs. Prior to Vermont’s legalization of cannabis in 2018, Black
4 persons were six times more likely to be arrested for cannabis possession than
5 White persons. A 2021 study conducted by the Council for State Governments
6 found that between 2014 and 2019, Black persons in Vermont were 14 times
7 more likely than White persons to be defendants in a felony drug case and 18
8 percentage points more likely than White persons to be sentenced to
9 incarceration for a felony drug offense.
10 (8) A health-based approach to drugs, prioritizing the expansion of harm
11 reduction services and on-demand access to evidence-based treatment, rather
12 than the traditional criminal justice model, has proven to be more effective at
13 preventing opioid deaths and drug-related injuries, reducing the spread of HIV
14 and Hepatitis C, and improving health outcomes for persons who use drugs. In
15 particular, harm-reduction interventions such as drug-checking services and
16 overdose prevention centers have been implemented throughout the world with
17 demonstrated success in saving lives and facilitating access to health care and
18 services for participants.
19 (9) Drug-checking services allow individuals who use drugs to identify
20 the actual contents of a substance they may intend to take and therefore reduce
21 harms associated with consuming an unknown substance. Making drug-
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1 checking equipment and services available to the public without the risk of
2 arrest or prosecution would reduce the risk of accidental death and
3 hospitalizations and also allow for real-time tracking of local drug trends.
4 (10) Throughout the last decade in Vermont, the approach to drugs has
5 gradually shifted toward emphasizing policies focused on prevention,
6 treatment, and harm reduction rather than punishment. In recent years, the
7 General Assembly has enacted legislation decriminalizing possession of the
8 opiate disorder treatment drug buprenorphine, granting immunity from
9 prosecution for possession of drugs for a person who seeks assistance for
10 themselves or another who is experiencing an overdose, and providing
11 widespread access to naloxone to treat opiate overdoses in an emergency.
12 (11) Eliminating criminal penalties for possessing personal use amounts
13 of regulated drugs would continue this progress in shifting toward a fully
14 public-health approach to drug use and addiction by helping eliminate barriers
15 for those who need supportive services. Such a strategic shift will also allow
16 Vermont to redirect money and resources from prosecution and incarceration
17 toward prevention, harm reduction strategies, and addiction services, affording
18 better outcomes for all Vermonters.
19 Sec. 2. 18 V.S.A. § 4201 is amended to read:
20 § 4201. DEFINITIONS
21 As used in this chapter, unless the context otherwise requires:
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1 ***
2 (6) “Depressant or stimulant drug” means:
3 (A) any drug that contains any quantity of barbituric acid or any of
4 the salts of barbituric acid, or any derivative of barbituric acid, that is
5 designated as habit-forming because of its effect on the central nervous system
6 in the rules adopted by the Board of Health under section 4202 of this title;
7 (B) any drug, other than methamphetamine, that contains any
8 quantity of amphetamine or any of its optical isomers, any salt or of
9 amphetamine, or any salt of an optical isomer of amphetamine, that the Board
10 of Health so designates by such rule as habit-forming because of its effect on
11 the central nervous system;
12 (C) gamma hydroxybutyric acid, including its salts, isomers, or salts
13 of isomers;
14 (D) gamma butyrolactone, including 4-butyrolactone and gamma
15 hydroxybutyric acid lactone, including its salts, isomers, or salts of isomers,
16 when packaged, marketed, manufactured, or intended for human consumption;
17 (E) ketamine, including its salts, isomers, or salts of isomers;
18 (F) flunitrazepam, including its salts, isomers, or salts of isomers; and
19 (G) any drug, other than methamphetamine, that contains any
20 quantity of a substance that the Board of Health so designates by such rule as
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1 having a serious potential for abuse arising out of its effect on the central
2 nervous system.
3 ***
4 (10) “Hallucinogenic drugs” means stramonium, mescaline or peyote,
5 lysergic acid diethylamide, and psilocybin, and all synthetic equivalents of
6 chemicals contained in resinous extractives of Cannabis sativa, or any salts or
7 derivatives or compounds of any preparations or mixtures thereof, and any
8 other substance that is designated as habit-forming or as having a serious
9 potential for abuse arising out of its effect on the central nervous system or its
10 hallucinogenic effect in the rules adopted by the Board of Health under
11 section 4202 of this title.
12 ***
13 (16) “Narcotic,” “narcotics,” or “narcotic drugs” means opium, coca
14 leaves, pethidine (isonipecaine, meperidine), and opiates or their compound,
15 manufacture, salt, alkaloid, or derivative, and every substance neither
16 chemically nor physically distinguishable from them, and preparations
17 containing such drugs or their derivatives, by whatever trade name identified
18 and whether produced directly or indirectly by extraction from substances of
19 vegetable origin, or independently by means of chemical synthesis or by a
20 combination of extraction and chemical synthesis, as the same are so
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1 designated in the rules adopted by the Board of Health under section 4202 of
2 this title.
3 ***
4 (29) “Regulated drug” means:
5 (A) a narcotic drug;
6 (B) a depressant or stimulant drug, other than methamphetamine;
7 (C) a hallucinogenic drug;
8 (D) Ecstasy;
9 (E) cannabis; or
10 (F) methamphetamine.
11 ***
12 (45) “Benchmark personal use supply” means the quantity of a drug
13 commonly possessed for consumption by an individual for any therapeutic,
14 medicinal, or recreational purpose.
15 (46) “Drug-checking” means the testing of a substance to determine its
16 chemical composition or assist in determining whether the substance contains
17 contaminants, toxic substances, or hazardous compounds.
18 Sec. 3. 18 V.S.A. § 4202 is amended to read:
19 § 4202. POWERS AND DUTIES OF THE BOARD OF HEALTH
20 (a) The Board of Health is authorized and empowered to adopt such rules
21 that in its judgment may be necessary or proper to supplement the provisions VT LEG #367687 v.1
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1 of this chapter to effectuate the purposes and intent thereof or to clarify its
2 provisions so as to provide the procedure or details to secure effective and
3 proper enforcement of its provisions.
4 (b) These rules and determinations, when adopted, shall, until modified or
5 rescinded, have the force and effect of law.
6 ***
7 (e) The Board of Health shall adopt rules reflecting the benchmarks
8 recommended by the Drug Use Standards Advisory Board in accordance with
9 section 4202a of this title.
10 Sec. 4. 18 V.S.A. § 4202a is added to read:
11 § 4202a. DRUG USE STANDARDS ADVISORY BOARD
12 (a) There is hereby created the Drug Use Standards Advisory Board
13 established within the Department of Health composed of experts in the fields
14 of general and behavioral health care, substance use disorder treatment, and
15 drug user communities.
16 (b) The primary objective of the Board shall be to determine, for each
17 regulated and unregulated drug, the benchmark personal use dosage and the
18 benchmark personal use supply. The benchmarks determined pursuant to this
19 subsection shall be determined with a goal of preventing and reducing the
20 criminalization of personal drug use.
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1 (c) The members of the Drug Use Standards Advisory Board shall, upon
2 first convening, select by majority vote a member to serve as the chair of the
3 Board. Upon any subsequent chair vacancy, the members shall likewise select
4 a new Board chair. After receiving nominations from harm reduction service
5 providers, the Chair shall appoint three consumer representatives to the Board
6 who have lived experience in drug use and consumption practices. The Chair
7 and the three consumer representatives shall appoint the remaining Board
8 members as follows:
9 (1) two representatives from harm reduction service providers;
10 (2) an expert on medication-assisted treatment programs;
11 (3) an expert on human behavior and addiction;
12 (4) an expert on substance use disorder treatment;
13 (5) an expert on legal reform from the University of Vermont Law
14 School Center for Justice Reform; and
15 (6) an academic researcher specializing in drug use or drug policy.
16 (d) On or before January 1, 2025, the Drug Use Standards Advisory Board
17 shall provide the recommended quantities for both the benchmark personal use
18 dosage and benchmark personal use supply for each category of regulated drug
19 listed in subdivision 4201(29) of this title.
20 (e) The Drug Use Standards Advisory Board shall convene at least one
21 time per year to review benchmarks established pursuant to this section and VT LEG #367687 v.1
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1 recommend any necessary amendments. The Chair of the Drug Use Standards
2 Advisory Board may, with the consent of a majority of Board members,
3 convene additional meetings to receive testimony from experts on drug use,
4 substance use disorder, and medical research or practice relating to any
5 specific drug.
6 (f) Upon receipt of the benchmark recommendations, the Board of Health
7 shall expeditiously adopt the benchmark recommendations through
8 rulemaking. The Board shall initiate rulemaking not later than September 1,
9 2023.
10 Sec. 5. 18 V.S.A. § 4231 is amended to read:
11 § 4231. COCAINE
12 (a) Possession.
13 (1)(A) A Except as otherwise provided in subdivision (B) of this
14 subdivision (1), a person knowingly and unlawfully possessing cocaine shall
15 be imprisoned not more than one year or fined not more than $2,000.00, or
16 both.
17 (B) A person knowingly and unlawfully possessing cocaine in an
18 amount less than a benchmark personal use supply shall be assessed a civil
19 penalty of not more than $50.00.
20 (2) A person knowingly and unlawfully possessing cocaine in an
21 amount consisting of 2.5 grams or more of one or more preparations,
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