How Fentanyl Hysteria Leads to Harmful and Ineffective Drug Laws

By Tessie Castillo 02/20/19

We might as well accept reality and direct our efforts towards making drugs less deadly, in the same way that we accept the risks of driving a car, but also try to prevent accidents.

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Sad businessman in prison due to breaking fentanyl drug laws
The problem with using the criminal justice system to address complex issues like drug use is that we imagine the system to be far more effective than it actually is. ID 29662870 © Photographerlondon | Dreamstime.com

My only experience with fentanyl was when I was pregnant. I was on a hospital bed writhing in agony when a nurse injected me with the synthetic opioid commonly used for pain management in laboring women. The drug calmed me and I soon gave birth to a healthy baby girl.

That was before fentanyl moved from the hospitals to the streets, tainting the illicit drug supply and ratcheting up an already alarming death toll from overdose.

Since then, deaths from synthetic opioids (mostly fentanyl) have begun a steep climb, jumping 540% in the past three years alone. More than half of the opioids in the U.S. are now laced with fentanyl and the fear surrounding the drug is palpable. Some people claim you can overdose on the drug just from touching it. As a result of this hysteria, many first responders are afraid to respond to overdoses for fear of coming into contact with fentanyl. Meanwhile, states are scrambling to pass laws responding to the ever-changing landscape of fentanyl and its many derivatives.

Alice Bell, who works to reduce overdose deaths through Prevention Point Pittsburgh, a syringe exchange program, says that there are reasons to be concerned about fentanyl. In Allegheny County, Pennsylvania, where her program operates, the opioid was involved in 20% of deaths in 2014. In 2016 the number tripled to 63% and today fentanyl is present in 74% of drug-related overdose deaths.

“Fentanyl is much stronger than heroin and other opiates,” Bell explains. “It is easy to get a high dose without realizing it… Because it is fast acting there is a smaller window before people [overdose].”

What Is Fentanyl and How Is It Dangerous?

Fentanyl, a synthetic opioid created to mimic the effects of natural opioids (which are derived from opium poppy plants), was first introduced in 1959 as an anesthetic and pain reliever for surgery and cancer patients. It wasn’t until 2014 that unregulated forms of fentanyl began arriving in the U.S. from China. Because these analogues are cheap to buy and highly potent, they’re often mixed into supplies of other illicit drugs, such as heroin, cocaine, or pills. People buying or selling drugs on the streets may have no idea whether the product contains fentanyl, or how strong it is. This lack of knowledge has contributed to skyrocketing rates of overdose deaths across the country.

As Bell explains, because illicit fentanyl is mixed into other drugs in unregulated environments, it is hard to mix it uniformly. Thus, one person might get a very strong dose while another might get a weaker dose, even though both samples came from the same supply. Bell likens it to “mixing pancake batter and getting chunks.”

But although Bell acknowledges the dangers of a fentanyl-laced drug supply, she also emphasizes that much of the panic surrounding fentanyl and its effects is misleading—including false rumors about Narcan-resistant fentanyl or people overdosing just from touching the substance.

Dan Ciccarone, a professor at the University of California, San Francisco who has spent the last four years studying fentanyl, agrees that while there are reasons to be concerned, responding to the challenge with policies rooted in fear and misinformation only makes matters worse. He points out that the problem is not so much fentanyl itself, but the fact that it’s being added to other drugs in unknown amounts.

“We have to take some of the hysteria and the irrationally out of it,” he says. “If we say the problem is heroin and heroin contaminants, [we] treat the problem differently than if [we] say it’s a new drug and it’s killing our teenagers.”

How to address the fentanyl-related overdoses is a question vexing many policymakers. In the past few years, state legislatures have spun off in wildly different directions. Some have attempted to curb overdoses through the introduction of 911 Good Samaritan laws and expanding availability of naloxone, syringe exchange programs, and treatment options for people who use drugs problematically. Some have implemented diversion programs and sentencing reforms designed to keep people who struggle with addiction out of jail and to connect them to programs that address the root cause of addiction. Others are enacting ever-harsher penalties for crimes involving fentanyl. In fact, many states are doing all of these things at once, oblivious, it seems, to the fact that some of these new policies contradict or even cancel each other out.

Opioid Confusion and Contradictory Drug Policies

In 2017, Louisiana passed a bill that reduced prison sentences for drug possession convictions. But the same law created a new mandatory minimum sentence for illegally possessing opioid painkillers (such as fentanyl). Maryland likewise enacted legislation in 2016 to reduce penalties for drug users and sellers, but the very next year created a new penalty for drugs containing fentanyl that extends prison sentences up to 10 years. In 2017, North Carolina cracked down on synthetic fentanyl and created a task force to reform opioid sentencing laws in literally the same bill. On the federal level, the passage of The First Step Act, which reduces mandatory minimum and three-strike laws, came on the heels of the former Attorney General’s declaration to relentlessly prosecute every case involving any amount of fentanyl.

In essence, many governments are passing laws that lessen penalties for opioid-related crimes, while simultaneously enacting laws that further criminalize fentanyl (an opioid).

For Michael Collins, Director of the Office of National Affairs at the Drug Policy Alliance, the confusion stems from a desire to respond and a lack of knowledge about the most effective way to do so.

“Policymakers feel pressure to do something,” he explains. “In the absence of public health measures that they are familiar with, legislators will dust off their Drug War playbook and go towards punitive measures…certainly there is no evidence that those penalties will decrease overdose deaths.”

Collins’ explanation echoes my own experience as a lobbyist advocating against drug-induced homicide laws in North Carolina. Like many states, North Carolina is responding to increases in fentanyl-related deaths by introducing legislation that would allow prosecutors to charge people with murder if they distribute a drug that leads to an overdose. It’s a typical punish-first response that not only is proven ineffective at reducing overdose deaths, but could potentially increase overdose deaths by negating the state’s 911 Good Samaritan law, which was enacted in 2013 to encourage people to call 911 to report an overdose. If lawmakers agree that fear of being charged with possession of drugs is enough to deter someone from calling 911, surely they see that fear of being charged with murder would even further discourage life-saving medical calls.

But, as I discovered, it is hard to reason with a politician, a prosecutor, or a law enforcement official who is under intense pressure from their community to “do something.” Of course to address the problem of people selling drugs that lead to overdose, we need to tackle the underlying factors that lead people to sell drugs in the first place, such as the need to support a personal drug habit or lack of economic alternatives. But proposing solutions such as more drug treatment centers, jobs programs for low-income neighborhoods, greater investment in vocational education…all these are high-cost, long-term solutions. And officials are being pressured to find answers now.

Increasing penalties against drug dealers is quick, relatively simple, and the cost is picked up by local court systems, not by the politicians who passed the law. Better yet, harsher penalties sound like a solution that satisfies the public’s need for accountability.

Incarceration and Stricter Laws Cause More Crime and Deaths

The problem with using the criminal justice system to address complex issues like drug use is that we imagine the system to be far more effective than it actually is. We probably wouldn’t celebrate laws that incarcerate more people if we realized that locking up one drug dealer merely causes another to take his place. We probably wouldn’t be so anxious to pour billions of dollars into law enforcement efforts to disrupt drug supplies if we realized that U.S. illicit drug market is estimated at $100 billion annually, while law enforcement only seize between $440 and $770 million in drug money per year—around 0.5% of the total value. We might not swallow the $1 trillion price tag of the War on Drugs if we realized that after all this money spent and all the families disrupted from incarceration due to nonviolent crimes, drugs are now cheaper, more plentiful, and more deadly than ever before.

To effectively lower the demand for drugs or decrease overdose deaths, we need to think outside the box.

Alice Bell explains, “If you want to encourage people to avoid more dangerous drugs, you have to allow people access to less dangerous drugs.”

That is certainly not a solution that politicians want to hear. It doesn’t “sound good.” But it would do far more to reduce overdose deaths than all our efforts to slap people with longer prison sentences. We need to help politicians confront their fear of drugs and to understand that drugs always have been and always will be a part of our communities. We might as well accept reality and direct our efforts towards making drugs less deadly, in the same way that we accept the risks of driving a car, but also try to prevent accidents. Most people age out of addiction—if they live long enough to do so. There is no reason that taking a hit of a mood-altering substance should be akin to Russian Roulette.

Libertarian economist Milton Friedman once said, “Only a crisis—actual or perceived—produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around. That, I believe, is our basic function: to develop alternatives to existing policies, to keep them alive and available until the politically impossible becomes the politically inevitable.”

Fentanyl may be that catalytic crisis needed to produce change. In that case, we should work to turn tragedy into opportunity.

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Tessie Castillo is a writer and drug policy advocate in Raleigh, North Carolina. Her articles explore topics such as criminal justice reform, drug policy, and harm reduction. Castillo previously served as the Advocacy and Communications Coordinator for the North Carolina Harm Reduction Coalition (NCHRC), a statewide nonprofit that advances drug policy and criminal justice reform. During that time, she played a pivotal role in helping to legalize syringe exchange programs and expand access to naloxone, a medicine that reverses opioid overdose. Find Tessie at her website or on Facebook, TwitterInstagram, and LinkedIn.

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