‘War on drugs’ deja vu: Fentanyl overdoses spur states to seek tougher laws

Randy Abbott seethed with anger after his 24-year-old daughter, Vanessa, died of an overdose at a North Carolina house party eight years ago. His idea of justice was “for everybody to go to jail forever.”

But today, Abbott doesn’t believe that users who share lethal drugs should be prosecuted for the resulting deaths. In Vanessa’s case, that person was a childhood friend, herself in the throes of addiction. “She lives every day with the fact she lost her best friend,” Abbott said.

His view is part of an emotional debate unfolding in state legislatures across the country, as lawmakers move to crack down on drug crimes in response to growing anger and fear over the toll of a drug crisis killing thousands every month. In North Carolina, one of at least a dozen states this year that have considered tougher drug penalties, the Senate recently passed a measure that would expand prosecutors’ ability to bring felony charges against anyone who gives a lethal dose of fentanyl.

Prosecutors often support such measures, saying they are deterrents and hold to account people who sell illegal drugs, particularly fentanyl, the synthetic opioid that can be 50 times as strong as heroin and kills one person in the United States every seven minutes, on average.

Critics such as Abbott argue that the harsh penalties don’t deter drug use, and unfairly punish people struggling with addiction who are often low-level dealers - harking back to the failed drug sentencing laws of the crack-cocaine era of the 1980s and 1990s.

Still, the proposals are politically popular, including with some Democratic legislators who in recent years rolled back punitive state drug laws but are under pressure on rising crime and the unprecedented overdose epidemic. Many families who have lost loved ones to overdoses also support measures to increase penalties for crimes related to fentanyl.

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Fentanyl accounted for some 70,000 overdose deaths in 2021 alone - a toll greater than the American fatalities in the wars in Vietnam, Iraq and Afghanistan combined. Its role led Homeland Security Secretary Alejandro Mayorkas to describe it as the “single greatest challenge we face as a country.”

“We’re seeing Americans killing other Americans, distributing illicit drugs that contain a deadly substance,” said Barbara Walsh of Cary, N.C., who lost her daughter Sophia in 2021, after the 24-year-old drank a bottle of water she didn’t know was spiked with fentanyl. Walsh says no one was prosecuted in Sofia’s case.

“If someone was doing that with cyanide, they would be incarcerated for poisoning,” said Walsh, who created the Fentanyl Victims Network of North Carolina.

The rash of state bills underscores the political urgency of a drug crisis that has grown more lethal and intractable over time - and perhaps, also, a sense of desperation on the part of legislators and law enforcement officials who have been unable to curb demand, or shut off the spigot of drugs to their communities.

Trade in illegal street fentanyl is controlled by Mexican cartels, which smuggle the cheap drug across the southern border in powder or pill form - some users don’t realize they are ingesting fentanyl. President Biden has prioritized cracking down on fentanyl smuggling across the southern border, while Republicans lambaste Democrats as being soft on crime.

At the state level, too, the legislative proposals reveal divisions, although not always along traditional partisan lines. Critics of stiffer penalties say that state and federal statutes are already tough, and that government resources should go toward reducing the flow of dangerous narcotics and to addiction treatment and other harm-reduction efforts.

Twelve states have laws that specifically outlaw fentanyl possession, according to the National Conference of State Legislatures. In recent years, many others have also beefed up drug-trafficking laws. West Virginia’s governor last year signed legislation that made fentanyl distribution a crime punishable by up to 15 years in prison.

‘Doubling down’ on penalties

This year in Virginia, legislators passed bills, signed into law by the governor, that define fentanyl as a “weapon of terrorism,” and decree that anyone who “knowingly or intentionally” manufactures or distributes a fentanyl-laced substance may be convicted of a felony punishable by up to 10 years in prison. Yet, Virginia already had a law that makes dealing in fentanyl a crime punishable by up to 40 years in prison.

“There is no incentive for elected officials to stop doubling down on these approaches,” said Leo Beletsky, a professor of law and health sciences at Northeastern University. “They get to go out and engage in these theatrics, and the people who pay the price are the taxpayers and people who receive very long sentences.”

In Alabama, there’s already a law on the books doling out minimum mandatory sentences for possessing mixes of drugs, including fentanyl. Still, the House last week unanimously passed a bill that would impose a minimum of three years in prison for having one gram of “pure” fentanyl. Alabama’s governor has said she will sign the bill, which is now before the Senate.

Not all the bills are passing. In California, Democrats last week rejected a bipartisan bill that would have made it easier to prosecute convicted drug dealers who sell fatal doses. And in New Mexico, a bill to increase sentences for fentanyl dealers never made it to a vote before the legislative session ended.

Some officials say the explosion in fentanyl deaths has led them to reassess. Four years ago, Nevada Attorney General Aaron Ford, a Democrat, supported a sweeping overhaul of the state’s justice system that included increasing the amounts of drugs that would lead to felony charges.

Today, he’s supporting a bill that would make it a crime to sell, possess, transport or manufacture four grams of fentanyl, punishable by a sentence of one to 20 years in prison. The bill would also remove fentanyl from a “good Samaritan” law that grants immunity from possession charges for someone who calls 911 to report a person overdosing.

In New Jersey, meanwhile, critics in February offered spirited opposition to Democratic-sponsored bills that would boost penalties for selling or possessing certain amounts of fentanyl. They argued that such laws would incarcerate users without addressing the underlying reasons for the crisis. Nonetheless, the measures passed a Senate committee with overwhelming support and are awaiting further consideration.

Keith Humphreys, a drug policy adviser and professor of psychiatry at Stanford University, said that tougher sentencing laws mean little to people focused on their day-to-day addiction.

“The idea they would pass up using fentanyl now because . . . maybe there is a 1-in-10,000 chance they could serve five years in prison later is not going to change their behavior,” Humphreys said.

In Maine, where Democrats control both houses and the governor’s office, a bipartisan bill seeks to make trafficking in fentanyl a higher level of felony, punishable by up to 30 years in prison. The bill’s sponsor, Sen. Brad Farrin, a Republican who lost his 26-year-old daughter Haley to an overdose last summer, said the measure is about “accountability.”

“It’s a poison that is killing our youth,” Farrin said. “We’re losing a generation.”

But the American Civil Liberties Union of Maine notes that under existing law, anyone caught possessing four grams of fentanyl can be convicted of trafficking. Chasity Tuell, a director of harm reduction services for Maine Access Points, said the bill exposes users in northern Maine - who buy drugs to last for days because they live in isolated rural areas - to decades in prison.

“Someone with a tolerance is using much more than (four grams) a day,” Tuell said. “Fentanyl is fast-acting, so they need to use more often throughout the day.”

Other states want to tackle overdose deaths directly. In Texas, the Senate passed a bill last month that would pave the way for prosecutors to charge fentanyl dealers with murder, a vote lauded by Gov. Greg Abbott (R). The bill is now before the House.

Opponents have long argued that such laws - known as “drug-induced homicide” statutes - don’t deter dealing, and too often ensnare friends and even relatives of the victims, like the Illinois man sentenced to six years in prison for providing the heroin-fentanyl mix that killed his sister.

Yet they have advanced even in Democratic-controlled Colorado, where the deaths last year of five people who ingested fentanyl-laced cocaine inside a Commerce City apartment spurred lawmakers to pass a law allowing felony charges to be brought against dealers who furnish a deadly dose of fentanyl. State prosecutors had filed only five such cases by early March, Colorado Public Radio reported.

Some lawmakers now want to expand that law to include other major drugs that result in death, such as methamphetamine. Tension over the bill preoccupied the Senate over two days last month. “It’s not stopping us from investing in addiction treatment or harm reduction,” said the bill’s Democratic co-sponsor, Kyle Mullica, while Julie Gonzales, the Democratic majority whip, called the bill “vengeful.”

The bill passed the Senate, and if it is adopted by the House and signed into law, it would make the maximum sentence 32 years in prison for providing a fatal dose of any illegal drug.

“At the end of the day, it will have zero impact on the overdose crisis,” said Taylor Pendergrass, a Colorado ACLU attorney who argued that the measure does nothing to reduce supply or demand.

North Carolina had passed a “death by distribution” law in 2019, but it applied only to people who sell, as opposed to share, drugs that prove fatal. Penalties range from more than 19 years to 40 years in prison, depending on a defendant’s record. The state has still suffered grave losses - in 2021, there was a 22 percent increase in overdose deaths over the previous year, according to the state health department.

Last month, the Republican-controlled Senate unanimously passed a bill to expand that law to include anyone who “unlawfully delivers” a controlled substance, which critics say will lead to the prosecutions of users who share a dose that proves fatal. The bill is now before the House.

Legislators “have claimed the laws are not about targeting people who use drugs, that they’re about targeting some imaginary kingpin, big-dealer type,” said Jennifer Carroll, a medical anthropologist at North Carolina State University. “But by expressly writing these laws, they are targeting average people.”

The executive vice president of the North Carolina Sheriffs’ Association, Eddie Caldwell, pushed back on such criticism, saying being a drug user “is no excuse for killing someone.”

“Whether you kill someone and make 20 bucks, or kill them without making money, you still kill them,” Caldwell said. “They’re dead. Their families are traumatized.”

Abbott, the father who lost his daughter, says he believes the measure might have another, costlier consequence - neutering North Carolina’s “good Samaritan” law, which provides immunity in certain circumstances for people who call 911 to report that someone is overdosing.

Abbott, who works with a nonprofit devoted to strengthening that law, appeared at a news conference Wednesday to support a newly filed Senate bill that would broaden immunity for people who call 911 to report a possible overdose. “People need to know that if someone overdoses, they can call for help without fear of going to jail,” he said.