In the United States, fentanyl is classified as a Schedule II controlled substance, meaning there is a potential for misuse and dependence, but it does have an accepted medical use and can be prescribed for restricted use.

Though prescribed synthetic opioids are sometimes diverted to the illicit market, the main reason for the surge in high purity synthetic opioids are from the increase in manufacturing from clandestine labs, which are either pressed into pills and sold as fentanyl, or left in powder form and mixed with heroin.

In 2016, following the high profile case of music legend Prince’s fentanyl-related death and increasing seizures of synthetic opioid-laced heroin by law enforcement, calls from politicians to increase punishment for possession and/or sale of illicit fentanyl included escalating mandatory minimum sentencing, and even capital punishment for sale of heroin.

Similar to enforcement efforts toward other NPS, individual states and the federal government’s efforts are centered around placing individual synthetic opioids and opiate-like NPS into Schedule I of the Controlled Substances Act (CSA).

States that have proposed or enacted fentanyl-related penalties since 2011

There is no evidence that escalating criminal punishment will have any effect on reducing risk of overdose or use in general. These policies will fail to address the issues involving fentanyl and will continue the harmful trend of mass incarceration in the US.