Since the U.S. drug war was declared in 1971, various drugs have been identified as public enemy number one—from crack cocaine, in the 1980s, to prescription opioids in the early 2000s. Today’s primary antagonist is Fentanyl. A synthetic opioid 50 times more powerful than heroin, it is today. In 2021, more than 71,000 people in the U.S. died after overdoses involving synthetic opioids—mostly fentanyl, according to provisional data released by the National Center for Health Statistics on May 11.
This is a very serious drug and requires a strong public health response. There are several tools to prevent overdoses. There have been decades worth of research, such as Narcan, which sells the medicine naloxone. However, fear of fentanyl and a desire to look proactive are driving many state lawmakers to take approaches which, in the past, have caused more harm than good—namely, punitive policies which lock up drug dealers and users alike for lengthy periods of time, and contribute to mass incarceration. Pew’s 2018 study found that tougher drug possession penalties did not decrease drug consumption. And a National Research Council 2014 report showed that increasing the number of drug-related convictions didn’t clearly reduce drug use and had a different impact on Black communities than it did Hispanic.
As opioid and especially fentanyl-related deaths have risen, some states have implemented harm-reduction policies like expanding access to drugs that treat opioid use disorder, or legalizing fentanyl test strips and in some cases making them available for free, to make it easier for drug users to figure out before it’s too late whether their drugs are adulterated with fentanyl. Many states, however, have or are considering new legislation that will increase the penalties for drug crimes. Most of these laws specifically refer to fentanyl. Mississippi has recently passed a law which, effective July 1, increases the penalties for giving fentanyl to someone who causes death. Kentucky passed recently a law that increased the mandatory prison sentence for anyone found guilty of transporting fentanyl into state with intent to sell it or distribute. This March, Wisconsin enacted a law making “manufacturing, distributing, or delivering” any amount of fentanyl a felony.
Colorado offers a useful example. The number of drug-related deaths in 2020 was 1,477 Coloradans. This is 38% more than the previous year. Colorado Health Institute attributes this increase to fentanyl. On May 11, the Fentanyl Accountability and Prevention Act passed state legislation. This bill would increase access to medications that treat opioid abuse disorder and give funds to education on fentanyl. The law proposed would make possession of more than one gram of any drug, if any, a crime. Advocates fear that this could worsen the opioid overdose crisis by forcing users to hide or lock them up in prison.
Like crack cocaine before it—which was falsely blamed for making users more violent—the focus on fentanyl is threaded with fear-mongering and misinformation. In April, Colorado Public Radio asked Governor Jared Polis if he thought making possession of fentanyl a felony in the state would have similarly disastrous results as the War on Drugs started by President Richard Nixon in the 1970’s had on the U.S.. “You have to think of fentanyl more as a poison than a drug,” Polis responded, comparing it to anthrax. Indeed, local news across states has been flooded with similar misinformation about fentanyl, including stories about first responders who claimed they’d suffered a fentanyl overdose through skin contact with patients who had been using—although experts say that overdosing in such a way is nearly impossible.
Such narratives enable politicians to paint fentanyl—and those who traffic in it—as particularly nefarious. But really, it’s a public health crisis—not a crisis of criminality. “What we need is to ramp up the things that we know prevent people from dying of overdoses, and not continue to focus on the enforcement side, where we have very little evidence that that improves public health outcomes,” says Robin Pollini, an associate professor of public health at West Virginia University.
The View from the Ground
One of advocates’ greatest fears about the legislation is that it will expand the imprisonment of drug users, and contribute to the socioeconomic instability that often fuels addiction and abuse in the first place. Colorado’s bill would only apply to those knowingly carrying more than one gram of any substance containing the drug, That would presuppose that the person who carries this amount is a dealer. “I would say the goal of this bill, if implemented properly, is not to put drug users in jail. The goal of this bill is to put drug dealers in jail,” says Colorado Attorney General Philip Weiser.
Experts say there are many reasons someone could carry more than one gram of fentanyl for their personal use. For one, the amount of fentanyl in street drugs can vary greatly, which means that users are unlikely to actually know how much they’re carrying. Fentanyl has a longer-lasting, but stronger, high than opioids. This means that someone using it may be taking it more often to avoid withdrawal. That means they’re probably buying as much as they can whenever they can—especially if they have limited access to transportation or live in a rural area.
Colorado’s attempt to separate the “users” from the “dealers” is based on a “false distinction,” says Dr. Sarah Axelrath, who treats Denver patients with substance use disorder. Most of the drug dealers she encounters are users themselves, and are engaging in “subsistence level drug distribution:” trading drugs to sustain their addiction, and to meet basic needs. In such communities, a drug dealer is less likely to be a shadowy stranger than a trusted friend—and the person who is buying one day may be selling the next. That’s why about 225 drug users who use services at the Harm Reduction Action Center in Denver have signed “Do Not Prosecute” forms, created by the activist group Urban Survivors Union, which are meant to make a plea to law enforcement that, in the event of an overdose, they not go after the person who provided the drugs. The point they want to make to legislators, says Center director Lisa Raville, is that when police arrest drug dealers, “they’re not getting the popularly envisioned large drug seller or cartel. It’s family and loved ones,” who both buy and sell at low levels.
Harm Reduction, but not Harm
Experts are concerned that Colorado’s laws could backfire and worsen the opioid epidemic. A person who is convicted in a felony for having opioids in their possession is more likely to be destabilized, lose their support network, and make it difficult to quit using. There is “unintended and collateral damage that happens from being incarcerated,” says Dr. Joshua Barocas, an infectious disease doctor and associate professor at University of Colorado School of Medicine. It can cause opioid addicts to experience increased housing instability, decreased food and difficulty accessing work, all of which may lead them back to their addiction.
Fentanyl can be criminalized immediately to deter others from saving their lives. A shot of Narcosone is the best thing for someone who overdoses on opioids. However, if there is no one to give the medication or call for assistance and they are also opioid users or sellers (or both), then it could be a waste of time for them to decide whether to call for aid. “In general, these kinds of laws drive drug use further underground,” says Robin Pollini, an associate professor of public health at West Virginia University. “The higher the penalties on drug use, or the higher level of policing around drug use, the less likely people are to present in public for services they need.”
Then there’s the possibility that cracking down on fentanyl could lead to the emergence of even deadlier drugs. One of the reasons fentanyl became so dominant is that it’s easier for drug dealers to move through a punitive system compared to other opioids—it can be made from common ingredients, instead of grown in an opium plant, and it’s more compact, making it easier to transport and hide. Already, drug producers are developing new and more dangerous chemical analogs of fentanyl that drug tests can’t detect.
Among Colorado health care providers who work with drug users, and have known many people who have died of overdoses, there’s a sense that the proposed bill is a wasted opportunity to invest the state’s resources in tools that are actually proven to stop overdoses. “The evidence is just so clear that criminalization and felonization and incarceration will not do anything to decrease rates of substance use disorder or even recreational drug use, and it certainly won’t decrease rates of overdose deaths,” says Axelrath. “But we have things that work. And so it is frustrating to watch our resources be funneled into interventions that we know from 50 years of both research and practice aren’t effective.”
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