New legislation from Sen. Marco Rubio (R–Fla.) would make selling fentanyl used in a fatal overdose a federal crime punishable by the death penalty. Rubio's bill is backed by a dozen other Republican senators, including Marsha Blackburn (Tenn.), Tom Cotton (Ark.), Ted Cruz (Texas), Joni Ernst (Iowa), and Josh Hawley (Mo.).
The bill (S.4876) would define selling fentanyl that leads to a fatal overdose as a form of first-degree murder under federal law. A first-degree murder conviction means life in prison at minimum, and possibly the death penalty.
Rubio and co. want people to think we have a fentanyl problem because our laws aren't tough enough. But not only does selling fentanyl come with heavy penalties on its own, federal law already criminalizes the "distribution of fentanyl causing death" specifically, too.
Under current law, distributing fentanyl that causes death comes with a mandatory minimum sentence of 20 years in prison and a maximum sentence of life imprisonment (with no possibility of parole, since there is no parole in federal prison).
And yet plenty of people still sell fentanyl. It seems at some point, we have to admit that the threat of punishment—no matter how harsh—isn't going to stop people from selling drugs, nor get America out of the mess we've gotten into with opioids.
Alas, as per usual, politicians' response to the results of the drug war is…more drug war.
Rubio notes, correctly, that the synthetic opioid "fentanyl is killing Americans at a record high. This deadly drug is widespread throughout our country."
But he leaves out the fact that fentanyl took off after the government cracked down on prescription painkillers, making legal—and much less deadly—opioids harder to get. He also omits the fact that a lot of fentanyl deaths come from people not knowing the heroin or other drugs they're taking have been cut with fentanyl, or not knowing how to dose correctly with fentanyl versus heroin (the former can be much stronger). And the fact that part of the reason fentanyl is popular with drug dealers is because it's more potent, which means they can smuggle more in the same volume container as other substances.
("Alcohol prohibition shifted consumption from beer and wine toward distilled spirits. Drug prohibition gave us heroin instead of opium, fentanyl instead of heroin, and sometimes even-more-potent fentanyl analogs instead of fentanyl," as my colleague Jacob Sullum puts it.)
A lot of fentanyl problems could be mitigated by decriminalizing drugs, or at least pulling back on prohibitionist tactics. If more drug users were able to buy from known sources, test their drugs for fentanyl, use at safe-injection sites, or take other harm-reduction steps, we might not wind up with so many overdose deaths. If people in pain could turn to prescription pills, we might not wind up with so many heroin and fentanyl users in the first place.
Instead, Senate Republicans want to simply say an eye for an eye—or an eye for a plea deal, more likely.
The idea of executing drug dealers as first-degree murderers even when they had no intention of killing anyone is draconian, yes. (So, too, the idea of putting them in prison for life.) The punishment isn't proportionate to the crime, it sends a terrible message about criminal justice in America, and it's ridiculous waste of state resources. It also seems unlikely that a judge would actually sentence someone to death for selling fentanyl.
The real benefit, for prosecutors, will be in being able to hang this draconian possibility over someone's head in order to coerce them into taking a plea deal. It's much easier to get someone to plead guilty and accept a few decades in prison if the alternative is life in prison or state-ordered execution.
The losers in this scenario aren't just drug dealers but also drug users. Research suggests treating fatal overdoses as homicides makes people less likely to seek medical attention for those who overdose.
State laws treating drug sales that lead to fatal overdoses as murder have been on the books since the 1980s, but their use seems to have increased over the past decade, according to a report from the Drug Policy Alliance.
"Although legislators and prosecutors may portray such cases as a way to punish callous, death-dealing drug traffickers, the defendant is usually someone close to the decedent," notes Sullum. "The upshot is that a defendant's role in 'distributing' a drug may be limited to buying it for someone else, arranging a purchase, or sharing a stash. When money changes hands, the dealers are often selling just enough to finance their own habits."