Nebraska proposal would apply weight‑based felony tiers to fentanyl, drawing split between prosecutors and defense groups

Lincoln — A Judiciary Committee hearing on LB817 drew support from prosecutors and the attorney general’s office and opposition from civil‑liberties and defense groups over how the bill treats fentanyl‑containing mixtures for sentencing.

Senator Tanya Storer said LB817 creates the same three‑tier felony structure already used for cocaine, heroin and methamphetamine, applying weight thresholds to any mixture that contains a detectable amount of fentanyl. “This approach measures the entire mixture containing a detectable amount of fentanyl,” Storer said, noting the bill tracks existing Nebraska and federal approaches for mixtures.

Jordan Osborne of the Nebraska Attorney General’s Office told the committee the bill is consistent with federal law and Supreme Court precedent (Chapman v. United States) that allows sentencing based on the weight of a mixture containing the controlled substance. He cited national data showing synthetic opioids drove large numbers of overdose deaths.

Opponents including Spike Eichold of the ACLU of Nebraska and the Nebraska Criminal Defense Attorneys Association argued the bill’s definition — ‘‘mixture or substance containing a detectable amount of fentanyl’’ — could expose defendants to severe penalties for trace amounts embedded in large carriers, including legal materials, packaging or another controlled substance. Eichold warned the measure creates a new substantive offense rather than an enhancement and raised concerns about double‑counting when multiple controlled substances are present in the same material.

Committee members asked technical questions about laboratory testing and prosecutorial practice. Counsel and proponents said laboratories would detect fentanyl presence and report mixture weight (the entire pill or package weight is used when fentanyl is present), and that state or contracted labs typically perform analysis.

Senator Storer said the measure aims for parity so fentanyl traffickers face penalties proportionate to the harm posed by the substance’s potency; the committee did not vote and the bill will remain in committee pending further drafting and response to technical concerns.