One Step Forward, Two Steps Back: New Report Warns Against Harsh Penalties for Illicit Fentanyl

New York, NY – Today, the Drug Policy Alliance released Criminal Justice Reform in the Fentanyl Era: One Step Forward, Two Steps Back, a new report highlighting the dangers of policymaking based on renewed drug war hysteria in response to fentanyl. The report warns that ramping up sentences for fentanyl, as some members of Congress and the US Department of Justice are advocating, will only compound the harms of illicit fentanyl use and undermine recent federal progress on sentencing reform. 
 
The Stopping Overdoses of Fentanyl Analogues (SOFA) Act of 2019 and the Federal Initiative to Guarantee Health by Targeting Fentanyl (FIGHT Fentanyl) Act are two pieces of legislation pending in Congress that would place fentanyl analogs permanently into Schedule 1 and double down on tough-on-crime-style harsh penalties. These proposals would increase the use of mandatory minimum sentences for even trace amounts of a fentanyl-like substances, exacerbating already disturbing drug sentencing trends that are reminiscent of the crack cocaine era, such as the racial disparities we are now seeing in fentanyl trafficking prosecutions. 
 
“It would be a tragic mistake for policymakers not to see some of the parallels between what is happening now with fentanyl and the response to the crack-cocaine hysteria in the 1980s,” said Grant Smith, Deputy Director of National Affairs for the Drug Policy Alliance. “We will never be able to undo the decades of harm that has been caused to communities of color as a result of those policies, but we do have the opportunity to avoid repeating them.”
 
These proposals are among other troubling policy responses to illicit fentanyl in recent years, including mandatory minimum sentences, homicide charges, involuntary commitment, expanded powers for prosecutors and others that simply entrench us in the drug war tactics of the past rather than policies grounded in public health and harm reduction. It is essential that lawmakers understand that harsher penalties will not reduce fentanyl-involved overdose deaths. 
 
The report highlights:

• Since 2011, 45 states have proposed legislation to increase penalties for fentanyl while 39 states have passed or enacted such legislation.
• To date, none of the states that enacted harsher penalties for fentanyl have demonstrated a reduction in fentanyl-involved deaths because of these new laws.
• The trend toward tougher penalties for fentanyl presents a threat to the reform movement, undercutting initiatives to reduce mass criminalization and incarceration. 
• Fentanyl enforcement already mirrors other disparate drug enforcement, with 75% of individuals sentenced at the federal level for fentanyl trafficking being people of color and more than 50% for low-level roles in the distribution chain.
• Based on fear rather than reason, these efforts repeat the mistakes that epitomize the failed war on drugs, while undermining efforts to reform our criminal justice system and pursue a public health approach to drug use.
• Proposals that increase penalties for fentanyl risk compounding the overdose crisis, by incentivizing the creation of chemically distinct substances that end up being far more potent and driving people away from health services and into more risky drug consumption activity to avoid detection and prosecution.
• The report also draws parallels between the laws being proposed now for fentanyl and those that were passed in the 1980s as a result of the crack-cocaine hysteria. These laws caused immense damage, which continues to have an impact today, particularly in Black communities.

There have been significant shifts on the federal and state level to reduce penalties for various drug-related offenses such as passage of the bipartisan First Step Act last year that eased some federal drug sentences. But these gains are now threatened by the increasingly irrational and panicked attitude towards fentanyl. Harsher sentences will not reduce overdose deaths, but we do know what can save lives: expanded access to evidence-based treatments like methadone and buprenorphine, the availability of the overdose antidote naloxone, legally sanctioned Supervised Consumption Sites (SCS) and other approaches grounded in harm reduction and health.

Accordingly, DPA outlined the following recommendations in the report:

1. Expand and protect 911 Good Samaritan laws
2. Expand community-based naloxone access and distribution
3. Expand Opioid Agonist Treatment (OAT)
4. Improve drug checking, surveillance and data collection and make them more widely accessible,
5. Authorize supervised consumption sites (SCS) on the state and local level,
6. Fund pilot injectable opioid treatment as an option for some people with chronic heroin use disorder.

“These are public health challenges that demand health-oriented solutions. Punitive measures have only exacerbated the problems associated with fentanyl,” said Grant Smith, deputy director of national affairs with the Drug Policy Alliance. “Instead of reviving failed punitive approaches, we need to redouble efforts to improve access to evidence-based, health-centered alternatives like methadone and buprenorphine treatment, naloxone and other harm reduction interventions to reduce overdose deaths.”
 
The report comes on the heels of Rethinking the “Drug Dealer”, another report released by DPA demonstrating how the United States’ punitive approach to people who sell or distribute drugs—rooted in stigma, ignorance and fear, rather than evidence—has done nothing to reduce the harms of drug use or improve public safety, while instead creating new problems and compounding those that already exist.
 
The full report can be found at drugpolicy.org/fentanylreport.