As American states rush to curb the surging death toll from fentanyl, the supercharged opioid swirling through the US’s illicit drug supply, they are increasingly reaching for laws and tactics reminiscent of the failed “war on drugs” of the 1980s.
Dozens of states have introduced tougher laws in recent months in a desperate attempt to hold back the tide of a drug claiming nearly 200 lives a day that is the leading cause of deaths among American adults under the age of 45.
Other states are dusting off old statutes permitting them to charge drug suppliers with murder, including users such as a 17-year-old in Tennessee after she overdosed with two classmates while taking fentanyl-laced cocaine. They died but she survived and was charged with killing her friends.
Virginia has gone further by classifying illegally produced fentanyl as a “weapon of terrorism” alongside bombs, biological agents and radioactive devices in a move to increase prison sentences for dealers. Attorneys general of 18 states are pressing President Joe Biden to declare fentanyl a weapon of mass destruction, saying that in a single month US customs seized enough of the drug to kill every American.
But critics say the measures have echoes of discredited 1980s laws passed to combat the crack epidemic, including life sentences for people who dealt drugs that killed the user.
Maj Neill Franklin, former commander of the the Baltimore police’s drug bureau and before that a narcotics agent with the Maryland state police, said those laws led to a surge of arrests and prison time, particularly of Black Americans, without having much impact on the drug trade.
“When crack hit our cities, they said we’ve got to do something about that. ‘Let’s get tough with these penalties.’ Then we realised what a mistake we made and we rolled those archaic policies back. So here we are with fentanyl and we’re starting to see a repeat of the failed past policies and laws,” said Franklin, who led the Law Enforcement Action Partnership, a criminal justice reform group, after he left the police.
“This is a kneejerk emotional response which is not going to make a difference. It’s actually going to create harms as we travel down this road again, persecuting users instead of getting them the help that they need. We are headed in the wrong direction because our policymakers, our political leaders, want to appear strong and tough on crime, tough on these drugs. But it’s not the answer,” he added.
The push for tougher action is in part driven by grieving parents who sometimes describe fentanyl in the language of terrorism because it is a terrifying, highly dangerous killer often hidden from view within other drugs, such as heroin and cocaine, or disguised as prescription pills.
The synthetic opioid, usually made from chemicals manufactured in China and shipped via Mexico, is popular with cartels because it is many times more powerful than other narcotics and so requires smaller quantities which are easier to smuggle than heroin or cocaine. The fentanyl is then laced into other drugs to boost their strength and value, but small amounts of it are so powerful it is hard to calculate the strength of the narcotic and easy for the unwitting user to overdose.
The surging death toll has prompted parents across the country to post pictures of their lost children on billboards as a warning to others and to demand action against what the head of the US Drug Enforcement Administration, Anne Milgram, has called “the single deadliest drug threat our nation has ever encountered”.
Kathy Plante-Hunt posted a sign in Watertown, New York, in memory of her daughter Tamarra: “A drug dealer sold my daughter her last breath … FENTANYL KILLS!”
In Oklahoma, parents erected a billboard with photographs of a dozen victims of opioid overdoses next to the words “Their lives matter” and the question: “Why are drug dealers getting away with murder?”
Similar signs appeared in Texas where a surge of fentanyl-related deaths of more than 2,000 people last year prompted several new laws including a provision for murder charges when supplying the potent opioid causes death. The legislation in Texas was in part driven by 10 students from three schools in the northern suburbs of Dallas overdosing on fentanyl-laced drugs at the end of last year. Three of them died.
The Texas governor, Greg Abbott, praised grieving relatives who campaigned for tougher laws as he signed four statutes in the last months.
“The fentanyl epidemic has taken far too many innocent lives but thanks to the work by brave parents and loved ones, like those here today, we have made Texans aware of this crisis,” he said.
“If you are distributing this poison, our goal is to charge you with murder when there is an overdose out there,” said the Los Angeles county sheriff, Robert Luna. “Plain and simple, you’re distributing this poison, you’re going to go to prison for a long time for committing murder.”
Other states have ramped up prison time for offences involving fentanyl. In May, Iowa introduced sentences of up to 50 years for selling the drug.
A group of Republican senators introduced the Felony Murder for Deadly Fentanyl Distribution Act in February that includes the death penalty for dealers.
Prosecutors in California have joined those in Florida, Indiana, Missouri and other states in pursuing murder or manslaughter charges against fentanyl suppliers even if they are friends and family.
In May, a 17-year-old Tennessee schoolgirl was charged with murder after she overdosed with two friends who died. The young women took fentanyl-laced cocaine in a car shortly after a high school graduation ceremony in Somerville, east of Memphis. Two of the girls were found dead at the scene. The third was taken to hospital in critical condition. After she recovered she was charged with two counts of second-degree murder and possession of a controlled substance.
In Ozark, Missouri, a teenager was charged with murder and child endangerment in December for supplying the drugs that killed a 16-year-old girl he met in church. A 15-year-old Wisconsin girl was charged in February with reckless homicide after supplying fentanyl to pay off a drug debt to another teenager who then overdosed and died.
Critics such as Gene Wu, a member of the Texas house of representatives, question whether such prosecutions will do anything to curb overdoses.
“No study has ever shown that increasing penalties for drug usage has ever reduced drug usage in people who have a drug addiction,” he said during a debate about his state’s new laws.
Jennifer Carroll, a medical anthropologist at North Carolina State University and the author of a recent study that found sweeps to arrest drug dealers actually drove up overdoses, called the new laws “categorically unconscionable”.
“We have a lot of very good direct and circumstantial evidence of what the impacts of these laws are going to be. I think it’s going to be horrific,” she said.
“We have politicians that are baiting the genuine grief of families who have lost loved ones and telling them that these sorts of laws are going to do something like bring justice or even prevent it from happening to someone else. That is not true. All the evidence we have tells us that these types of prosecutions and this type of policing actually increase community harm, increase overdose risk. In fact, they’re making it more likely that another tragedy will happen to another family.”
Tougher enforcement sometimes also appears in contradiction with Good Samaritan laws intended to reduce deaths by protecting drug users from arrest if they call for help when others overdose.
Oklahoma has just such a law, yet in April prosecutors charged a 42-year-old Oklahoma City man, Joshua Askins, with murder after he called the emergency services when a man he was smoking fentanyl with overdosed and died. The other man, Christopher Drake, had paid for the drug they bought from a dealer.
Jonathan Caulkins, a drug policy specialist at Carnegie Mellon University and co-author of Marijuana Legalization: What Everyone Needs to Know, said that prosecuting the individual who sells or shares a dangerous dose of drugs is to go after the wrong person.
“These prosecutions aren’t going to work, aren’t going to accomplish much because they’re targeted at the wrong people. There’s nothing wrong with a long drug sentence for somebody who ‘deserves it’. You just want it attached to the right person,” he said.
Caulkins said there are more than 1 million people involved in distributing illegal drugs in North America and giving long prison sentences to the people supplying fentanyl at the end of the dealer chain will not make much of a difference because it leaves the original suppliers untouched.
“Those who sell huge amounts of drugs are responsible for very large numbers of deaths, not only from the drug consumption but they also just kill and torture people,” he said.
Still, Caulkins said he has some sympathy for politicians grasping for a means to contain the crisis.
“I am pretty understanding of the terrible situation that politicians are in because this is just the phenomenally catastrophic thing that is happening. Naturally, the political leaders are under enormous pressure to do something and so they take actions that are pretty stupid,” he said.
