State fentanyl crackdowns called racist, ineffective

More states are tightening fentanyl-related criminal penalties to combat the opioid crisis, sparking pushback from some activists and health care officials who call the measures racist and ineffective.

Fentanyl, a powerful synthetic opioid, has fueled a decade of overdose deaths that soared during COVID-19 restrictions. More than 100,000 Americans a year die from drug overdoses, federal statistics show.

Doctors can legally prescribe fentanyl as a painkiller 50 to 100 times more potent than morphine. Counterfeit pills from China have been flooding American streets since 2013, as has illicit fentanyl powder manufactured with Chinese chemicals in Chinese and Mexican drug labs.

At least 28 states have enacted fentanyl criminalization laws, according to the Legislative Analysis and Public Policy Association, which researches drug safety policies.

“Given the substantial increase in fentanyl-caused overdoses in most of the country, one could argue that no U.S. jurisdiction currently tackles the issue with complete success,” Jon Woodruff, the association’s managing attorney, said in an email. “Solving the issue will likely require demand-side intervention reducing individuals’ demand for illicit drugs along with supply-side intervention reducing the availability of illicit drugs.”

Lawmakers in at least 46 states this year have introduced hundreds of bills proposing tighter penalties for fentanyl-related crimes, according to the National Conference of State Legislatures.

“The tide needs to be reversed and lives saved,” Katharine Sullivan, a former Colorado state drug court judge and board member of the Recovery for America Now Foundation, told The Washington Times. “Nobody is advocating to just lock people up, but we can come together to enact responsible drug policy.”

A recovering alcoholic and a U.S. assistant deputy attorney general in the Trump administration, Ms. Sullivan supports licensed treatment programs as a way for fentanyl traffickers to expunge their criminal records.

Not all states have declared a “war on drugs” approach to opioids.

New York and Rhode Island are among the states that have decriminalized fentanyl and legalized “safe injection sites” for users to feed their addictions without overdosing.

Missouri lawmakers have decriminalized the distribution and use of fentanyl testing strips, which allow users to monitor themselves for overdoses.

California Gov. Gavin Newsom announced in March that the state would spend $4 million to dispense testing strips and $79 million to distribute naloxone, an overdose-reversing drug. He also pledged $3.5 million to distribute overdose medication to public middle and high schools.

Advocates of “harm reduction strategies” say tighter criminal penalties worsen the opioid crisis while reinforcing racist prosecution and incarceration patterns.

Most low-level fentanyl dealers are addicts who need treatment rather than prison time, said Maritza Perez Medina, director of federal affairs for the Drug Policy Alliance, a New York-based advocacy group opposed to banning addictive substances.

“The overwhelming majority of people prosecuted for fentanyl analog trafficking are Black and brown,” Ms. Perez Medina told The Times. “Imposing severe penalties on these individuals without addressing the root causes of problematic drug use perpetuates social disparities.”

Outlawing substances creates “a dangerous cycle” that pushes users toward harder drugs, she said.

“Lawmakers must focus on addressing the root causes of problematic drug use and activity by investing in social services and ensuring people have access to things like good-paying jobs, nutritious food, quality education, affordable housing and other life-affirming resources,” Ms. Perez Medina said.

Fentanyl-related prosecutions jumped from 47 in fiscal 2018 to 126 in fiscal 2019 and have remained above 120 a year since then, according to the U.S. Sentencing Commission.

The number of fentanyl prosecutions reported to the commission hit 145 in fiscal 2022, the most recent year for which data is available. More than half of all offenders were Black, and roughly 85% were men. Their average age was 35.

Last year, the Drug Enforcement Administration seized more than 58.4 million fentanyl-laced fake pills and more than 13,000 pounds of fentanyl powder, the equivalent of more than 387.6 million lethal doses.

The Biden administration has requested a record high $46.1 billion from Congress for national drug control programs in fiscal 2024, which starts Oct. 1. If granted, the allocation would represent a $2.3 billion increase from fiscal 2023.

The administration recently dispatched a delegation to Mexico to negotiate a crackdown on clandestine labs that make fentanyl for smuggling into the U.S.

Criminal penalties should target accountants, smugglers and corrupt government officials in the global fentanyl pipeline rather than low-level dealers, said psychologist Keith Humphreys, a Stanford University addiction researcher who tracks the opioid crisis.

“The average street corner drug dealer is the ultimate in unskilled labor,” Mr. Humphreys said. “They will be immediately and easily replaced. However, for people who have unique skills or are unusually dangerous, it’s very useful to put them away for a long time.”

Under federal law, anyone whom the FBI or the DEA arrests for possessing at least 40 grams of fentanyl or 10 grams of a fentanyl analog faces a minimum charge of five years in federal prison. A lethal dose is roughly 2 milligrams.

States that have moved this year to enact harsher penalties include:

• Virginia, where lawmakers have designated fentanyl “a weapon of terrorism.” A bill passed this spring allows prison sentences of up to 10 years for knowingly creating or selling substances with even trace amounts of fentanyl.

• Iowa, where a law enacted in May increases penalties from up to 10 years to up to 50 years in prison for selling and making fentanyl.

• Arkansas and Texas, which now allow homicide charges for giving fentanyl to anyone who later dies from an overdose. The Texas law also makes it a first-degree felony to manufacture, distribute or possess shipments of fentanyl from 200 to 400 grams.

Other states have enacted tighter criminal penalties and harm reduction strategies.

In North Carolina, the Senate unanimously advanced a bill in March to elevate criminal penalties for fentanyl dealers whose products cause overdose deaths. If enacted, the legislation would authorize the state to charge drug dealers with high-grade felonies for such deaths.

For opioid users, North Carolina offers syringes, community naloxone distribution and drug checks with fentanyl test strips.

“In my experience as a trial judge, once the courtroom becomes merely the intake center for rehab, then the criminal justice system has failed in its endeavors to curb illicit substance abuse, particularly with more deadly drugs like fentanyl,” Philip Ginn, a retired district judge who served for 22 years in North Carolina county courts, said in an email.

Now the president of Southern Evangelical Seminary in Charlotte, Mr. Ginn supports faith-based drug rehabilitation programs to reduce the demand for fentanyl.

“What is needed, along with tougher drug laws, is more stringent faith-based drug abstinence programs within and without the penal system that do not simply substitute one drug for the other as their preferred method of treatment,” Mr. Ginn said.