Why Do Critics of Harsh Drug Penalties Support Them When the Drug Is Fentanyl?

A new Drug Policy Alliance report highlights this puzzling and dangerous inconsistency.

Even as President Donald Trump brags about his support for sentencing reform, he pushes enhanced fentanyl penalties that threaten to repeat the mistakes he claims to be correcting. As a new report from the Drug Policy Alliance (DPA) shows, that sort of inconsistency is hardly unique to the president.

"Many legislators who support scaling back mass incarceration and the drug war are now supporting extremely harsh measures for fentanyl, undercutting the effectiveness of criminal justice reforms," write Michael Collins, former director of national affairs at DPA, and Sheila Vakharia, the organization's deputy director for research and academic engagement. One striking example: The Sentencing Reform and Corrections Act of 2017—a bill that would have gone further in reducing drug penalties than the FIRST STEP Act, which Trump signed in 2018—nevertheless included a "mandatory sentencing enhancement" for heroin mixed with fentanyl.

At the state level, politicians who favor reducing drug sentences, such as Maryland Gov. Larry Hogan (R), likewise want to increase them when the drug is fentanyl. Since 2011, Collins and Vakharia found, 39 states and the District of Columbia have responded to the upward trend in opioid-related deaths by enacting harsher penalties for fentanyl offenses, a strategy that is both ineffective and unjust.

These politicians are responding to the increasing prevalence of fentanyl as a heroin booster and substitute. That development, driven by the economics of prohibition, has made illegal opioids more deadly.

Since fentanyl is roughly 50 times as potent as heroin, its use has made the potency of illicit opioids more variable and unpredictable, magnifying the risk of accidental overdose. "The lack of knowledge whether an illegal drug may contain fentanyl (or how much) could mean that people may not be taking necessary precautions to reduce their risk of overdose, such as using a smaller amount, not mixing with other classes of drugs or consuming their drugs more slowly," Collins and Vakharia note. Furthermore, fentanyl is faster-acting than heroin: "Whereas there may be 2-3 hours to respond to a heroin or prescription opioid pill overdose, the effects of a fentanyl-related overdose are virtually immediate (death can occur in a matter of minutes) and someone must reverse the overdose with naloxone [an opioid antagonist used to treat overdoses] immediately to prevent a fatality."

Fentanyl has become very common in many parts of the country. "Fentanyl is now present in most heroin in the Midwest and Northeast, while rapidly spreading west of the Mississippi," Collins and Vakharia write. Between 2010 and 2017, according to data collected by the U.S. Centers for Disease Control and Prevention, opioid-related deaths more than doubled, while the share of those deaths involving "synthetic opioids other than methadone"—the category that includes fentanyl and its analogs—more than quadrupled, from 14 percent to 60 percent. In 2017, that category was implicated in more than 28,000 deaths.

Given those trends, it is not surprising that legislators have reacted to fentanyl the way they usually react to the latest drug menace: by ramping up penalties for distribution in the vain hope of shrinking the supply, raising retail prices, and ultimately reducing consumption. But it is striking that this punitive response has coincided with bipartisan recognition that past attempts to reduce drug-related harm by sending more people to prison for longer periods of time—in particular, draconian mandatory minimums for crack cocaine offenses—resulted in excessive punishment for low-level dealers that disproportionately affected racial minorities.

The fentanyl crackdown promises more of the same. Looking at federal fentanyl convictions in 2016, Collins and Vakharia find that half the defendants were black, while a quarter were Hispanic. Although the average sentence was five and a half years, 26 percent of the fentanyl defendants were classified as "couriers/mules," while 24 percent were described as "street-level" dealers. Even more striking, 53 percent of the defendants "did not seem to know they had fentanyl," according to the U.S. Sentencing Commission.

Since fentanyl is commonly added to heroin high up in the distribution chain, people convicted of selling it, like their customers, "are often unaware of the composition and potency of their drugs and have little control over the quality of product available," Collins and Vakharia write. "How can a tough sentence be a deterrent for behavior that people cannot prevent and may not even know they are engaging in?"

Politicians may imagine they are punishing callous kingpins who are "agents of death," as former Sen. Kelly Ayotte (R–N.H.) put it while promoting a bill that would have increased federal fentanyl penalties. Under her proposal, the weight threshold triggering a 10-year mandatory minimum would have been reduced from 400 to 20 grams for fentanyl and from 100 to five grams for fentanyl analogs; the cutoffs for a five-year mandatory minimum would have dropped from 40 to two grams and from 10 grams to half a gram, respectively. Yet the low-level players who would often be subject to those mandatory minimums not only might not realize they were selling fentanyl; they might be users who sell drugs to finance their own habits or who qualify for distribution charges when they pool their resources with other users to buy drugs.

While Ayotte cited Prince's fentanyl-related death as an example of the problem she was trying to tackle, Collins pointed out that Prince himself could have qualified for a mandatory minimum sentence under her bill. Collins and Vakharia warn that "differentiating between people who use and sell drugs is not possible," especially since sentences are based on weight and prosecutors generally assume "intent to distribute."

Is there any reason to think that enhanced penalties will actually reduce fentanyl-related deaths? "There is no evidence that punishing the use and sale of a drug more harshly due to its potency will reduce its availability," Collins and Vakharia say. They quote an observation that Marc Mauer, executive director of the Sentencing Project, made in 2018: "Increasing already high penalties for drug offenses is not effective because 1) most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems, and 2) those who are apprehended and sentenced are often in the lower levels of the drug trade and are readily replaced by other sellers willing to fill their roles."

The fentanyl crackdown could actually increase drug-related deaths, since it includes a surge in prosecutions for "drug-induced homicide," a trend documented in a 2017 DPA report. By threatening to imprison people who share drugs that are implicated in fatal overdoses, such prosecutions may deter them from seeking lifesaving help, undermining the goal of "Good Samaritan" laws that are supposed to protect bystanders in such situations.

Instead of more punishment, Collins and Vakharia recommend several harm-reduction measures that are more likely to be effective, such as stronger Good Samaritan laws, increased access to naloxone, distribution of test strips that indicate the presence of fentanyl in black-market drugs, legalization of supervised drug consumption sites, and expansion of treatment using substitute opioids, including research on injectable alternatives. "We cannot have a public health response to some drugs and a criminal justice response to others," they write. "We cannot talk about 'treatment, not incarceration' and then revert to interdiction and enforcement when a new substance that frightens us appears on the scene."