Policymakers across the country struggling to reduce drug overdose deaths are embroiled in a heated debate over creating and increasing criminal penalties associated with fentanyl, a potent synthetic opioid up to 100 times more potent than morphine.
Lawmakers pushing a new wave of criminal penalties say the law will deter drug traffickers and hold criminals accountable. But opponents, including some public health officials, have warned of potential consequences, including worsening the opioid crisis and directing users to more dangerous synthetic alternatives.
As of this month, 28 states have enacted one or more criminal provisions for fentanyl, according to the Institute for Legislative Analysis and Public Policy, which researches and drafts potential bills on public safety and drug use.
In this year’s legislature alone, lawmakers introduced hundreds of fentanyl crime bills in at least 46 state legislatures, according to the National Congress of Legislatures. Although its content varies, the bill generally strengthens or strengthens penalties for the illegal production, possession, or distribution of the substance.
Lawmakers in Virginia passed a bill this spring that would designate fentanyl as a “terror weapon” and punish anyone who knowingly manufactures or distributes a substance containing detectable amounts of fentanyl with up to 10 years in prison.
An Iowa law signed in May tightened penalties for selling and manufacturing fentanyl, carrying prison sentences ranging from 10 to 50 years. The bill passed with bipartisan support, but some Democratic lawmakers also suggested the state improve access to resources such as drug use treatment and fentanyl test strips, which are still illegal in Iowa.
Arkansas and Texas are the latest states to pass bills making the administration of fentanyl to someone who has died of an overdose a homicide. About 30 other states and the District of Columbia have laws known as drug-induced homicide statutes that allow individuals to be charged with murder even if they socially share drugs if the drug contains a lethal dose.
The new Texas law imposes harsher penalties, including first-degree felony for those involved in the manufacture, distribution, or possession with intent to deliver 200-400 grams of fentanyl, and second-degree felony for those involved in the manufacture or distribution of fentanyl resulting in an overdose.
Proponents of the law say the measure not only protects Texans from potential overdoses, but also holds distributors accountable.
“The aim is to deter this practice so that prosecutors across the state can take the kind of action that is needed against this drug,” Republican Rep. David Cook, a Texas congressman who co-authored the bill, said in an interview with Stateline. “This is a necessary measure to protect the safety of the public.”
Republican Rep. Kronda Thimesh, who co-authored the bill, wrote in an email that the law has drawn “overwhelming support” from families, community leaders and law enforcement agencies across the state.
“We have learned from the past that stronger penalties work.
Critics, however, have expressed concerns about whether such measures really address the root causes of substance use.
“You can’t address fentanyl without addressing the whole problem of drug addiction and drug use,” Democrat Rep. Jean Wu, who voted against the bill, said in an interview with Stateline.
“If you make illegal things that humans want, things will get worse,” Wu said. “It will create more organized crime, it will create more unintended consequences, it will create more inequality and destruction in poor communities, because this bullshit will never affect the communities of those who make the laws.”
Some criminal justice advocates argue that fentanyl should be treated as a public health issue rather than a law enforcement issue.
By imposing criminal liability on drug-related cases, fear and stigma may discourage people with drug use disorders from seeking help, said Maritza Perez Medina, federal secretary general of the Drug Policy Alliance, which advocates for reduced criminal penalties for drugs.
“Public health interventions such as harm reduction services would go a long way in actually curbing overdose deaths and getting people to treatment. “There is still overinvestment in criminal justice at the expense of public health solutions.”
Perez Medina said criminalizing measures disproportionately affect marginalized communities and widen existing racial and socioeconomic disparities.
“[These criminalization policies are] It will also affect people at the bottom of the drug distribution chain, those using drugs who would probably benefit most from public health interventions rather than handcuffs,” she said.
more overdose
Fentanyl was originally developed in 1959 and introduced in the 1960s, according to the Federal Drug Enforcement Administration, when it emerged as an intravenous anesthetic and is used specifically to relieve pain after surgery. Fentanyl also works as a drug for chronic pain patients who have developed tolerance to other opioids.
Prior to 2013, overdose outbreaks associated with illicitly manufactured fentanyl were localized and often attributed to specific chemists, such as in Mexico, according to Bo Kilmer, co-director of the Rand Center for Drug Policy Studies, a nonpartisan research group.
That changed when illegally manufactured fentanyl began entering the United States from China in 2013, according to Kilmer. Over time, dealers mixed fentanyl with heroin and then moved on to counterfeit pills.
More than 110,500 people in the United States died from drug overdoses in 2022, according to preliminary figures released by the federal agency National Center for Health Statistics. Synthetic opioids such as fentanyl were involved in 68% of the deaths, or 75,778. The Drug Enforcement Administration also says that more Americans under the age of 50 die from illicit fentanyl than from other causes.
The increasing use of fentanyl laced with xylazine, a cheap animal sedative not intended for human consumption that can cause blackouts, damage and even amputation, has also raised concerns among policy makers. The Biden administration recently announced plans to curb the growing threat by stepping up testing and adjusting standardized data collection to better understand how xylazine-related overdoses are impacting the nation.
Several states have taken steps to restrict access to xylazine, also known as “trunk.” Pennsylvania Democratic Gov. Josh Shapiro announced in April that he would add xylazine to the state’s list of controlled substances, joining Ohio and West Virginia, which have similar regulations in place. Florida has already classified xylazine as a Schedule I controlled substance.
alternative approach
A recent study published in the American Journal of Public Health suggests that drug trafficking and police crackdowns on dealers could exacerbate the overdose crisis.
The Indianapolis study identified a pattern of doubling opioid-related overdose rates around a drug attack that persisted for weeks. The study suggested that increased overdose may be associated with people looking for alternatives due to a loss of steady supply, unaware of their tolerance to other opioids of varying potency.
Some drug policy experts worry that criminalizing fentanyl could turn individuals toward more dangerous substances as suppliers seek to evade law enforcement scrutiny.
“If you ban a drug, even if people respond to it, they’re just going to use a different drug altogether. We haven’t solved the problem because we haven’t met the demand, and as long as there’s a demand for that drug, there will be a supply,” Katherine Harris, a drug policy researcher at Rice University’s Baker Institute for Public Policy, told Stateline in an interview.
She also argued that focusing on this substance alone would not address the root causes and complexities of the overdose crisis.
“We’re always one step behind, but it feels like that’s what’s happening right now with xylazine,” Harris said.
Some states are choosing to pursue alternative approaches. California and North Carolina have adopted harm reduction strategies such as syringe exchange programs and increased distribution of naloxone, an overdose drug. New Hampshire recently outlined plans to fund $6.5 million in programs aimed at treating and preventing drug use in the state.
Missouri recently became the latest state to decriminalize fentanyl test strips. Only New York City and Rhode Island have legalized “safe injection facilities,” where people can use drugs under the supervision of trained staff who can reverse an overdose.
Zoe Glover-Sicquitano, executive director of the Police Assisted Addiction and Recovery Initiative, which helps law enforcement look to treatment programs instead of arrests, said there are more than 1,100 communities across the country working to address drug use and create pathways to treatment and recovery without arrest.
“Effective drug policy, including addressing the root causes of addiction and supporting harm reduction efforts, requires building public health and public safety partnerships. Working together with law enforcement and other stakeholders can reduce stigma, open more avenues to treatment, and reduce overdose deaths,” Grover-Sicquitano wrote in an email.
Stateline is a sister publication of Virginia Mercury within the States Newsroom, a network of news outlets supported by a coalition of grants and donors as a 501c(3) public charity. Stateline maintains editorial independence. If you have any questions, please contact Editor Scott Greenberger: info@stateline.org. Follow Stateline on Facebook twitter.
By Amanda Hernandez, Virginia Mercury
Virginia Mercury is part of The State Newsroom, a network of news outlets supported by a coalition of grants and donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence. If you have any questions, please contact the Editor’s girlfriend, Sarah Vogelsong: info@virginiamercury.com. Follow Virginia Mercury on Facebook, twitter.
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