Sadly, just as a bipartisan consensus
was emerging that a punitive approach to drugs was not the way forward, lawmakers are responding to fentanyl by prioritizing prison over public health and embracing discredited drug war policies proven to make the crisis worse.
In the last two years, 25 states have passed legislation
to increase fentanyl-related penalties. At the federal level, there have been several proposals to increase
mandatory minimum sentences and even give the death penalty
for selling fentanyl. And, in November, Attorney General Jeff Sessions announced
a measure to make it easier to prosecute synthetic opioid cases.
Oddly enough, some of the harshest measures have been passed in states that had been making considerable progress in scaling back the drug war and mass incarceration.
In Maryland, in 2016, the governor signed
a sweeping package of criminal justice reforms that reduced sentences for drug offenses. Some advocates suggested
that the bill's passage "put Maryland at the forefront of states that are adopting major criminal justice reform." Yet just one year later the same state passed
a bill with a 10-year sentencing enhancement for anyone caught selling fentanyl and its analogues.
Similarly, Kentucky Gov. Matt Bevin signed
re-entry and recidivism measures into law in the summer of 2017. He subsequently took to
the pages of The Washington Times to tell federal leaders that the "practice of 'lock 'em up and throw away the key' in our criminal justice system is an approach whose shot at effectiveness has run its course." That same summer, Bevin signed
a bill that makes the sale of any amount of fentanyl punishable by between five and 10 years in prison.
Other punitive drug war measures as a response to fentanyl have proliferated. A recent report
by the Drug Policy Alliance -- an organization working to end the war on drugs -- noted a rise in drug-induced homicide prosecutions, where individuals are charged with murder or manslaughter when drugs they sell (or even share or give away) lead to an overdose death. Currently, 20 states
have such a law. And elsewhere, the rise in fentanyl-related deaths has led lawmakers to pass involuntary commitment laws
, where people who use drugs are held against their will in treatment facilities, often in prison-like conditions -- and for up to 90 days
in some states.
Just as media hysteria drove
draconian responses to crack cocaine in the 1980s, there is a similar frenzy around fentanyl today. News stories commonly indulge in hyperbole, with wildly inaccurate tales
of police officers overdosing from touching fentanyl, funeral directors unable
to handle bodies of fentanyl overdose victims, the arrival
of fentanyl-laced marijuana and warnings
to wear gloves when handling shopping carts in communities where fentanyl use is prevalent.
It is essential that policymakers, journalists and the public understand a few critical points about this oft-misunderstood crisis.
authorities agree that fentanyl is usually produced and added to heroin outside the United States, so it makes little sense to punish people inside the country for its inclusion. And sellers are often unaware of the composition and potency of the drugs they distribute. An individual may believe he is selling heroin but may be prosecuted for selling heroin and fentanyl and given a stiffer sentence.
People who sell drugs are often
drug users. Politicians may intend to target "kingpins" with these proposals, but these laws typically end up targeting people who sell small amounts of drugs simply to fund their addiction. As Maryland public defender Kelly Casper points out
, "These aren't two distinct sets of people. ... They want to charge all of these people with drug dealing, when in fact the core of the problem is that they're users."
Making matters worse, drug sentences disproportionately
affect people of color, even though whites reportedly are more likely
to sell drugs, and there is no reason to believe harsh fentanyl penalties will be applied equally.
Most of the heroin on the East Coast and the Midwest now
contains traces of fentanyl. If we reduce penalties for heroin only to see them increased for fentanyl, we'll end up taking two steps forward and three steps back in the fight to end mass incarceration.
Ultimately, the most effective way to turn the tide on the fentanyl crisis is to increase the use of interventions that reduce harm and promote health. Safe consumption spaces
would enable people who use drugs to do so under professional supervision, virtually eliminating the possibility of an overdose death. This is especially important because the onset
of a fentanyl overdose is often much quicker than a typical overdose.
The speed of a fentanyl overdose is another reason we should expand the availability of naloxone -- a drug that reverses overdoses -- for drug users. There has been a political push
to get naloxone in the hands of law enforcement and paramedics, so-called first responders, but the first people on the scene of an overdose are invariably drug users or their loved ones.
And drug checking services
should be made available so that people can test their drugs for fentanyl. Furthermore, access to methadone and buprenorphine, which are proven
to reduce overdose deaths significantly, must be expanded.
Fentanyl is a serious challenge, and as the death count climbs, the pressure is on to "do something." But that "something" should be a strategy grounded in public health, not approaches that do nothing to decrease deaths and everything to increase the prison population.