New Fentanyl Laws Spark Debate on Tackling the Overdose Crisis
Last month, hours before graduation, three teenage girls were found slumped in a car in the parking lot of a rural Tennessee high school. Two died as a result of a fentanyl overdose. The third, a 17-year-old, was hospitalized in critical condition. Two days later, she was charged with the girls’ murders.
Prosecutors pointed to a Tennessee law that allows murder charges to be brought against someone who administers fentanyl to a person who dies from it.
“We created this law to punish drug dealers who poison and kill people,” said Mark E. Davidson, the district attorney prosecuting the case in Fayette County, Tennessee. “And we also want it to deter those who continue to take these drugs.”
Dozens of states, rocked by ongoing overdose deaths, have enacted similar laws and other legislation to drastically increase penalties for a drug that can be deadly with just a few milligrams.
In the 2023 legislature alone, hundreds of fentanyl crime bills were introduced in at least 46 states, according to the National Conference on State Legislatures. Virginia legislators have codified fentanyl as a “weapon of terrorism.” An Iowa law provides that selling or manufacturing less than five grams of fentanyl — about the weight of five paper clips — is punishable by up to 10 years in prison. Arkansas and Texas recently joined about 30 states, including Pennsylvania, Colorado and Wyoming, in having drug-related homicide statutes in place that allow homicide to be prosecuted even against those who publicly share drugs containing the deadly fentanyl – Cans included.
The bills aim to roll back a deadly substance that has undermined much of the illicit drug supply in the United States. But they renew the debate about whether ruthless law enforcement can be effective and equitable in addressing a public health crisis.
“We’re resorting to these really convenient, no-fuss, law-and-order solutions, even though they didn’t work before, they don’t work now, and there’s mounting evidence telling us they’re only going to make things worse.” , said Jennifer Carroll, a medical anthropologist at North Carolina State University. She is the author of a recent study that found that in one large Indiana county, 911 calls and overdose deaths skyrocketed as people who relied on dealers involved in drug busts desperately sought new sources .
Approaches to drug addiction have evolved in recent years, with both states and the federal government allocating more funding to treatment and prevention. The Biden administration has embraced the concept of “harm reduction” — the short-term goal of making drugs less dangerous for users. The Food and Drug Administration has approved an overdose drug, Narcan, for purchase over the counter.
But to many health experts, the tough new fentanyl laws appear to be a repeat of the drug war era of the 1980s and 1990s, when crack and powder cocaine were at stake. They fear the outcome will be similar: those incarcerated are overwhelmingly low-level dealers, particularly people of color, who may be selling to fund their addiction.
There are already signs that the bitter legacy of crack cocaine laws is making a comeback. According to the U.S. Sentencing Commission, the average federal prison term for human trafficking for a fentanyl-related substance last year was about six and a half years, with 56 percent of those convicted being black, 25 percent Hispanic, and 17 percent white. Such inequalities could get worse, argue critics, including Senator Cory Booker, a Democrat from New Jersey, citing a state fentanyl crime bill passed in the House of Representatives last month with bipartisan support.
Fentanyl, a highly addictive synthetic opioid that is 50 times more potent than heroin, was linked to more than two-thirds of the nearly 110,000 drug overdose deaths in the United States last year. In small, tightly regulated doses, it can be legally prescribed to patients with persistent pain. But in the last five years, the number of illegal versions has exploded.
They are often added to counterfeit prescription pills and other street drugs like cocaine as a cheap filler. Many victims who die don’t even know they took fentanyl.
In a deeply divided country, many anti-fentanyl crime laws are characterized by bipartisan support. This year, the Democratic-controlled state legislatures in Nevada and New Jersey passed tough fentanyl legislation. Oregon lawmakers, which passed the country’s most lenient drug possession law in 2021, have been considering a difficult new rule.
This may be partly because many laws have been publicly endorsed by families who have lost children to fentanyl. At ceremonies marking the signing of bills, mourners often stand next to governors.
“The families of the victims are promised that these bills will save lives,” said Lt. Diane Goldstein, executive director of the Law Enforcement Action Partnership, a group dedicated to criminal justice reform. “But what’s missing from all the discussions about the legislation is that nobody’s really asking, ‘How are we actually saving lives?'” Lieutenant Goldstein, who used to run a drug squad in Redondo Beach, California, lost a brother to an overdose.
Mr. Davidson, who is prosecuting the Fayette County teenage murder case, has seen the fear and desperation of families firsthand as he goes to Rotary clubs and churches to educate the community about fentanyl. After these sessions, anxious parents keep asking: What are you doing about it?
Until about two years ago, drug deaths were unknown in Fayette County, a rural dormitory community outside of Memphis of about 40,000 people. But as of May 2021, the county sheriff’s department has recorded 212 overdoses, including 27 deaths, mostly due to fentanyl.
Mr Davidson said his decision to charge the 17-year-old girl with fentanyl-related murder initially had a lot of public support.
“Some people say, ‘Well, we’ve got two dead kids here, so someone needs to be charged,'” he said.
But within days, authorities discovered drugs in the family home and accused an uncle of child neglect. Then the girl’s mother died of an overdose.
The tone of the comments on social media was beginning to reflect differing viewpoints on the case, Mr Davidson said. “Someone else will say, well, poor girl, her mother died and there are drugs in the house and she probably had a difficult childhood.”
So-called drug-induced homicide laws, such as those cited by Mr. Davidson, typically do not require prosecutors to prove that the person who provided the drug intended to kill the victim; The law assumes that if someone knowingly distributed fentanyl, death was predictable. Many prosecutors believe such laws are essential given the crisis in their communities.
“If you distribute this poison, our goal is to charge you with murder if there’s an overdose out there,” Los Angeles County Sheriff Robert Luna said during a press conference about fentanyl last month. “Plain and simple, if you spread this poison, you will go to prison for a long time for committing murder.”
John J. Flynn, the Erie County, NY District Attorney and president of the National District Attorneys Association, said prosecutors viewed these laws as a valuable tool, particularly for prosecuting wholesalers.
Critics say the laws run counter to the principles of Good Samaritan laws, which typically provide exceptions to drug offenses for drug possession or distribution. These waivers offer immunity from prosecution to a drug user who calls 911 to rescue an overdosing companion. But critics say people may be reluctant to call for help if the charge could include murder.
A more common form of fentanyl criminal justice focuses on the type of drug and weight at the time of seizure. Federal laws, and increasingly state laws, provide for higher mandatory minimum penalties for lower and lower amounts.
Mandatory minimum sentences are considered the most restrictive form of sentencing, as they generally prevent judges from exercising their discretion. At least six states added it to their fentanyl laws this year, according to the Addiction and Public Policy Initiative at the Georgetown University Law Center.
“Drug type and weight never reflects the full picture of a person committing a drug offense,” said Molly Gill, a former prosecutor and now vice president of politics at FAMM, a nonpartisan group formerly known as Families Against Mandatory Minimums. “It’s just one of many factors that should be considered, even if the drug is fentanyl.”
That framework largely ignores the context of a drug crime, she said, such as whether the defendant was an addict, was coerced into dealing drugs by a drug addict, or even knew the drugs contained fentanyl.
Ultimately, many drug crime experts say, these laws don’t significantly affect the vast sources of the drug supply: synthetic drugs, often ordered online and processed in Mexico, often with chemicals from China and India.
“These are international drug trafficking networks,” said Regina LaBelle, a former senior drug policymaker in the Obama and Biden administrations who is now director of the Addiction and Public Policy Initiative in Georgetown. Drug supply is no longer about poppy farmers, it’s about chemists, she added. “This is about illegal funding,” she said. “So what do we need to do strategically from a political point of view?”
Audio produced by Jack D’Isidoro.