As overdoses rise, states consider tougher penalties for fentanyl

Recovery advocates say the fines reflect ineffective strategies used for crack cocaine in the 80s.

RENO, Nevada. State legislators across the country are responding to the deadliest overdose crisis in U.S. history by introducing harsher penalties for possession of fentanyl and other potent lab-made opioids, which are linked to an estimated 70,000 deaths a year.

Giving longer prison sentences for possession of small amounts of drugs represents a shift in states that have eliminated penalties for drug possession in recent years. Advocates of harsher sentences say this crisis is different and that in most places the harsher sentences are meant to punish drug dealers, not just users.

“There is no other drug—another illicit drug—that has the same impact on our communities,” said Mark Jackson, Douglas County, Nevada, district attorney and president of the Nevada District Attorneys Association, which is pushing for stronger penalties for crimes related to fentanyl.

But the strategy worries recovery advocates, who say the focus on the criminal side of drugs has historically backfired, including when lawmakers increased penalties for crack cocaine in the 1980s.

“Every time we treat drugs like a law enforcement issue and tighten the laws, we find ourselves punishing people in ways that ruin their lives and make it harder for them to recover later,” said Adam Wandt, assistant professor of public policy. at the John Jay College of Criminal Justice in New York. He said people behind bars often continue to get drugs — often without quality addiction treatment — and then find it harder to find work.

As of 2020, drug overdoses are now linked to more than 100,000 deaths a year in the country, with about two-thirds of them linked to fentanyl. This is more than 10 times more than in 1988, at the height of the crack epidemic.

Fentanyl primarily enters the US from Mexico and is mixed with shipments of other drugs, including cocaine, heroin, methamphetamine, and counterfeit oxycodone pills. Some users are looking for it. Others don’t know they are accepting it.

Swallowing 2 milligrams of fentanyl can be fatal, meaning that 1 gram — about the same as a paper clip — could contain 500 lethal doses.

This is what prompts some legislators to impose harsh penalties, as well as measures such as the legalization of fentanyl testing materials and the distribution of naloxone, a drug that can reverse overdose.

Before the start of parliamentary sessions this year, a dozen states had already taken measures to stock fentanyl, according to the National Conference of State Legislatures.

And this year, in one liberal Oregon legislature and one conservative West Virginia legislature, lawmakers agreed to tougher penalties. In her state of the art speech this March, Alabama Gov. Kay Ivey, a Republican, called on lawmakers to pass a drug-trafficking law that includes tougher sentences for fentanyl.

In Nevada, where Democrats control the legislature, a bill backed by Democratic Attorney General Aaron Ford would provide for one to 20 years in prison for selling, possessing, manufacturing, or transporting 4 grams or more of fentanyl into the state, depending on the quantity. This is a change for Ford, who has backed criminal justice reforms, including a sweeping 2019 law that raised the threshold for such penalties to 100 grams, among other things. It would also remove fentanyl from the state’s Good Samaritan Act, which exempts people from criminal drug possession charges when they report an overdose.

“We learned that lowering the threshold for all drugs was excessive,” Ford said.

Harm reduction advocates are pushing Ford and others to rethink their support, arguing that thresholds for longer sentences may include low-level consumers — not just dealers targeted by the law — but also some who may not even know they are taking fentanyl. . . They warn that the state’s crime labs only test for the presence of fentanyl, not the exact amount in the drug mix. So people with more than 4 grams of a drug containing a few milligrams of fentanyl could be penalized for trafficking, they say.

Rosa Johnson runs a needle exchange where she meets people who could face consequences if a stricter fentanyl law is passed. The dozens of people who come every day rarely list fentanyl as their “drug of choice.” But it’s also rare for fentanyl test strips to come back negative because the drug is “soaked in a lot of things,” Johnson said.

Other lawmakers have introduced two bills to introduce lower threshold penalties for fentanyl, though much of the internal debate is with the Ford-backed bill. Meanwhile, Nevada Republican Gov. Joe Lombardo, a former sheriff, has vowed to introduce tougher legislation that would make possession of any amount of fentanyl as much a felony as trafficking fentanyl.

Both houses in South Carolina, led by Republicans, have passed action to combat fentanyl trafficking with bipartisan support, although lawmakers have not agreed on which version to send to the governor. Senators also unanimously approved a bill that would allow suspected drug dealers to be charged with murder by overdose.

House Minority Leader Todd Rutherford criticized colleagues for selling a “false waybill.” While Republican Rep. Doug Gilliam said he understood concerns about ambiguity, he said lawmakers should send a “strong signal” to drug traffickers.

A Senate subcommittee heard emotional testimony from family members of people who died from fentanyl overdoses. Among them was Holly Allsbrooks, co-founder of an advocacy group that also supports more fentanyl test strips, opioid antidotes and rehab centers. While Allsbrooks said there was no “perfect” solution, she said fentanyl trafficking measures were the “best” answers she’d heard.

“We fully support this bill,” she said. “And if people go to jail, they go to jail.”

Mark Burrows, who leads a Greenville harm reduction program that says it has canceled 700 overdoses by providing opioid antidotes, said the bills could increase deaths by making drug users hesitant to report overdoses.

“I just don’t know if that policy is appropriate,” Burroughs said.

Pollard reported from Columbia, South Carolina and Mulvihill from Cherry Hill, New Jersey. Pollard and Stern are members of the Associated Press/Report for America Statehouse News Initiative. Report for America is a non-profit service program that places journalists in newsrooms to report on hidden issues.

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