Fentanyl Has Been Banned from Massachusetts Courthouses

By Paul Gaita 01/11/18

Lawyers will be barred from presenting any substance "that have been collected as evidence" unless it is first analyzed and found to contain neither fentanyl nor carfentanil.

Judge in a courtroom striking the gavel,

The health risks posted about the synthetic opioid, fentanyl, and its analogs have prompted the Massachusetts court system to bar anyone from bringing it into a courthouse, even as evidence in a trial.

The ban, which takes effect on January 8, will prevent lawyers from presenting any substance alleged to be fentanyl or carfentanil, the elephant tranquilizer, in their physical form unless a judge rules that the opioids' presence in the courtroom would be necessary for prosecutors or defendants.

The ruling appears to be based on the "extremely potent and toxic" qualities of fentanyl and its potential to harm individuals through exposure, which has been widely reported in the media, though some health officials have dismissed the chance of harm through contact through skin or similar means.

The ban was announced in a memo sent to court staff, including judges, on January 3, which noted that effective January 8, "substances containing any amount of fentanyl or carfentanil are barred from entry into the courthouse." According to the memo, "about two to three milligrams of fentanyl—the equivalent of five to seven grains of table salt—can induce respiratory depression, arrest and possibly death," and can "take many forms and appear as common street-level controlled substances."

As a result, lawyers will be barred from presenting any substances "that have been collected as evidence and which would otherwise be entered as evidence at a hearing or trial" unless it is first analyzed and found to contain neither fentanyl nor carfentanil. Instead, as the Boston Globe noted, they will have to use alternative methods, such as photos or witness testimony, or if both sides in a case agree on the makeup of any substance through stipulation.

Fentanyl will be allowed into the courtroom under certain circumstances, such as with individuals with a valid prescription for medication that contains fentanyl. Also, the memo notes that judges may allow the drugs to be presented in physical form if it's determined that such evidence is "necessary for the Commonwealth to prove its case or to protect a defendant's constitutional right to a fair trial."

In such cases, the drugs will be packaged according to methods approved by the Drug Enforcement Administration and handled only by individuals who have been trained in the proper method of handling such drugs. Jurors and court clerks will not be allowed to handle the substances, which will be turned over to the appropriate agency after the courtroom presentation.

The Trial Court began drafting a decision on the ban in the fall of 2017, after the idea was endorsed by the Massachusetts District Attorneys Association and Boston Police Commissioner William B. Evans. David Labahn, president of the Association of Prosecuting Attorneys, said that individual courthouses have instituted a similar ban, but he was unaware of any statewide rulings similar to the Massachusetts decision.

Despite reports of incidents of first responders and other individuals becoming allegedly sickened through exposure to the drug through contact through breathing, skin or clothes, Dr. Michael Beuhler, medical director of the Carolinas Poison Center, told the Huffington Post that "most commonplace contact, such as touching, or being in a room with an open bag, is not enough to cause a problem."

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Paul Gaita lives in Los Angeles. He has contributed to the Los Angeles Times, Variety, LA Weekly, Amazon.com and The Los Angeles Beat, among many other publications and websites.