Committee Report

February 1, 2023

S. 1

Introduced by Senators Alexander, Turner, Senn, Young, Gustafson, Peeler, Setzler, Rankin and Adams

S. Printed 02/01/23--S.

Read the first time January 10, 2023

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The committee on Senate Judiciary

To who was referred a Bill (S. 1) to amend the South Carolina Code of Laws by adding Section 16-3-80 so as to create the offense of drug-induced homicide, to provide a penalty for a violation, and, etc., respectfully

Report:

That they have duly and carefully considered the same, and recommend that the same do pass:

LUKE RANKIN for Committee.

statement of estimated fiscal impact

Explanation of Fiscal Impact

State Expenditure

This bill establishes that fentanyl-induced homicide is a felony offense against the person who unlawfully delivers, dispenses, or otherwise provides fentanyl to a person who dies after injection, inhalation, absorption, or ingestion of any amount of the substance. This offense consists of the unlawful delivery, dispensation, or provision of fentanyl or a fentanyl-related substance to another person whose death is caused by his injection, inhalation, absorption, or ingestion of such substance and is punishable by imprisonment for not more than thirty years. The bill also provides that a defense may not established due to a decedent contributing to his own death by his purposeful, knowing, reckless, or negligent consumption of the controlled substance or by his consenting to the administration of the controlled substance by another person.

Judicial. This establishment of fentanyl-induced homicide may increase the number of cases brought in court. However, Judicial expects to manage any increase in caseloads within current resources. Therefore, this bill will have no expenditure impact for Judicial.

Commission on Prosecution Coordination. This bill creates a new offense, which could result in an increase in the number of warrants that are sent to the Offices of Circuit Solicitor for review, prosecution, and disposition; however, the potential increase in warrants is unknown. The implementation of this bill will have no expenditure impact as the commission expects to manage any increase in caseloads within current resources.

Commission on Indigent Defense. The implementation of this bill will have no expenditure impact for Indigent Defense, as the commission expects to manage any increase in caseloads within current resources.

Department of Corrections. This bill may result in an increase in the number of inmates housed by the Department of Corrections. However, no data are available to estimate the increase in the number of inmates that may be housed by Corrections. According to Corrections, in FY 2021-22, the annual total cost per inmate was $32,247, $30,044 of which was state funded, and the marginal cost per inmate was $4,836.28, $4,829.76 of which was state funded. However, as the potential increase in incarcerations in unknown, any expenditure impact for Corrections is undetermined.

State Revenue

This bill has the potential to increase General Fund revenue from fines, as well as Other Funds revenue of Judicial and other applicable agencies who receive a distribution from fine revenue for such an offense, due to the increased fine for offenders convicted in general sessions courts. However, as the number of such offenses that might occur in a given year is unknown, the revenue impact is undetermined.

Frank A. Rainwater, Executive Director

Revenue and Fiscal Affairs Office

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A bill

to amend the South Carolina Code of Laws by adding Section 16-3-80 so as to CREATE THE OFFENSE OF DRUG-INDUCED HOMICIDE, TO PROVIDE A PENALTY FOR A VIOLATION, AND TO PROHIBIT AN AFFIRMATIVE DEFENSE; by amending Section 16-1-10, relating to A LIST OF EXCEPTIONS FOR FELONIES AND MISDEMEANORS, so as to ADD DRUG-INDUCED HOMICIDE; and by amending Section 44-53-190, relating to Schedule I drugs, so as to add Fentanyl-related substances.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1.   Article 1, Chapter 3, Title 16 of the S.C. Code is amended by adding:

   Section 16-3-80.   (A) A person who unlawfully delivers, dispenses, or otherwise provides fentanyl or a fentanyl-related substance as defined in Section 44-53-190(B) and Section 44-53-210(c)(6) to another person, in violation of the provisions of Section 44-53-370, if the proximate cause of the death of any other person is the injection, inhalation, absorption, or ingestion of any amount of the fentanyl or fentanyl-related substance, commits the felony offense of fentanyl-induced homicide.

   (B) A person convicted of a fentanyl-induced homicide pursuant to the provisions of this section must be imprisoned not more than thirty years.

   (C) It is not a defense pursuant to this section that a decedent contributed to his own death by his purposeful, knowing, reckless, or negligent injection, inhalation, absorption, or ingestion of the controlled substance or by his consenting to the administration of the controlled substance by another person.

SECTION 2.   Section 16-1-10(D) of the S.C. Code is amended by adding a new offense to read:

   16-3-80. Fentanyl-induced homicide

SECTION 3.   Section 44-53-190(B) of the S.C. Code is amended by adding:

   48. Fentanyl-related substances. Unless specifically excepted, listed in another schedule, or contained within a pharmaceutical product approved by the United States Food and Drug Administration, any material, compound, mixture, or preparation, including its salts, isomers, esters, or ethers, and salts of isomers, esters, or ethers, that is structurally related to fentanyl by one or more of the following modifications:

      (a) replacement of the phenyl portion of the phenethyl group by any monocycle, whether or not further substituted in or on the monocycle;

      (b) substitution in or on the phenethyl group with alkyl, alkenyl, alkoxyl, hydroxyl, halo, haloalkyl, amino or nitro groups;

      (c) substitution in or on the piperidine ring with alkyl, alkenyl, alkoxyl, ester, ether, hydroxyl, halo, haloalkyl, amino or nitro groups;

      (d) replacement of the aniline ring with any aromatic monocycle whether or not further substituted in or on the aromatic monocycle; and/or

      (e) replacement of the N-propionyl group by another acyl group or hydrogen.

   This definition includes, but is not limited to, the following substances:   Methylacetyl fentanyl, Alpha-methylfentanyl, Methylthiofentanyl, Benzylfentanyl, Beta-hydroxyfentanyl, Beta-hydroxy-3-methylfentanyl, 3-Methylfentanyl, Methylthiofentanyl, Fluorofentanyl, Thenylfentanyl or Thienyl fentanyl, Thiofentanyl, Acetylfentanyl, Butyrylfentanyl, Beta-Hydroxythiofentanyl, Lofentanil, Ocfentanil, Ohmfentanyl, Benzodioxolefentanyl, Furanyl fentanyl, Pentanoyl fentanyl, Cyclopentyl fentanyl, Isobutyryl fentanyl, Remifentanil, Crotonyl fentanyl, Cyclopropyl fentanyl, Valeryl fentanyl, Fluorobutyryl fentanyl, Fluoroisobutyryl fentanyl, Methoxybutyryl Fentanyl, Isobutyryl fentanyl, Chloroisobutyryl fentanyl, Acryl fentanyl, Tetrahydrofuran fentanyl, Methoxyacetyl fentanyl, Fluorocrotonyl fentanyl, Cyclopentenyl fentanyl, Phenyl fentanyl, Cyclobutyl fentanyl, Methylcyclopropyl fenantyl.

SECTION 4.   The repeal or amendment by this act of any law, whether temporary or permanent, or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

SECTION 5.   This act takes effect upon approval by the Governor.

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