New Fentanyl Laws Ignite Debate Over Combating Overdose Crisis

Three teenage girls were found slumped in a car in the parking lot of a rural Tennessee high school last month, hours before graduation ceremonies. Two were dead from fentanyl overdoses. The third, a 17-year-old, was rushed to the hospital in critical condition. Two days later, she was charged with the girls’ murders.

Prosecutors cited a Tennessee law that permits homicide charges to be brought against someone who gives fentanyl to a person who dies from it.

“We have this law to punish drug dealers who poison and kill people,” said Mark E. Davidson, the district attorney who is prosecuting the case in Fayette County, Tenn. “And we also want it to be a deterrent to those who continue to do these drugs.”

Dozens of states, devastated by unrelenting overdose deaths, have been enacting similar legislation and other laws to severely ratchet up penalties for a drug that can kill with just a few milligrams.

In the 2023 legislative session alone, hundreds of fentanyl crime bills were introduced in at least 46 states, according to the National Conference on State Legislatures. Virginia lawmakers codified fentanyl as “a weapon of terrorism.” An Iowa law makes the sale or manufacture of less than five grams of fentanyl — roughly the weight of five paper clips — punishable by up to 10 years in prison. Arkansas and Texas recently joined some 30 states, including Pennsylvania, Colorado and Wyoming, that have a drug-induced homicide statute on the books, allowing murder prosecutions even of people who share drugs socially that contain lethal fentanyl doses.

The bills are intended to beat back a deadly substance that has infiltrated much of the illicit drug supply in the United States. But they are renewing a debate over whether unsparing law enforcement can be effective and equitable in addressing a public health crisis.

“We are falling back on these really comfy, straightforward law-and-order solutions in spite of the fact that they didn’t work before, they’re not working now, and there’s growing evidence telling us they’re making things worse,” said Jennifer Carroll, a medical anthropologist at North Carolina State University. She is an author of a recent study that found that in one large Indiana county, 911 calls and overdose fatalities jumped as people who relied on dealers who were swept up in drug busts frantically sought fresh sources.

Approaches to drug addiction have evolved in recent years, with both states and the federal government allocating more funds for treatment and prevention. The Biden administration has embraced the concept of “harm reduction” — the short-range goal of making drugs less dangerous for users. The Food and Drug Administration has approved an overdose reversal medication, Narcan, for purchase over the counter.

But to many public health experts, the tough new fentanyl laws seem like a replay of the war-on-drugs sentencing era of the 1980s and ’90s that responded to crack and powder cocaine. They worry the result will be similar: The incarcerated will be mostly low-level dealers, particularly people of color, who may be selling to support their addictions.

Already, there are signs pointing to a reoccurrence of the bitter legacy of the crack cocaine laws. Last year, the average federal trafficking prison sentence for a fentanyl-related substance was about six and a half years, with 56 percent of those convicted Black, 25 percent Hispanic and 17 percent white, according to the U.S. Sentencing Commission. Such disparities are poised to become even more extreme, argue critics including Senator Cory Booker, Democrat of New Jersey, pointing to a federal fentanyl crime bill that passed last month in the House of Representatives with bipartisan support.

Fentanyl, a highly addictive synthetic opioid that is 50 times more powerful than heroin, was linked to more than two-thirds of the nearly 110,000 overdose deaths in the United States last year. In small, tightly regulated doses, it can be legally prescribed to patients with relentless pain. But over the past five years, illicit versions have exploded.

They are frequently mixed into counterfeit prescription pills and other street drugs such as cocaine as a cheap bulking agent. Many victims who succumb are not even aware they have been taking fentanyl.

In a deeply divided country, many of the fentanyl crime laws are notable for attracting bipartisan support. This year, the Democratic-controlled legislatures in Nevada and New Jersey advanced strict fentanyl bills. Oregon lawmakers, who in 2021 passed the country’s most lenient drug possession law, have been weighing a tough new one.

This may be partly because many laws have been publicly championed by families who have lost children to fentanyl. Mourners often stand alongside governors at bill-signing ceremonies.

“The victims’ families are being promised that these bills will save lives,” said Lt. Diane Goldstein, the executive director of the Law Enforcement Action Partnership, a group pressing for criminal justice reform. “But what’s missing in all the discussions about legislation is that no one really is asking, How do we actually save lives?” Lieutenant Goldstein, who used to supervise a narcotics squad in Redondo Beach, Calif., lost a brother to an overdose.

Mr. Davidson, who is prosecuting the Fayette County teenage murder case, has seen up close the anxiety and desperation of families as he makes the rounds to rotary clubs and churches to educate the community about fentanyl. After these sessions, frightened parents keep demanding: What are you doing about it?

Until about two years ago, drug fatalities were unheard-of in Fayette County, a rural bedroom community outside of Memphis with about 40,000 people. But since May 2021, the county sheriff’s department has recorded 212 overdoses, including 27 fatalities, overwhelmingly because of fentanyl.

Mr. Davidson said his decision to charge the 17-year-old girl with fentanyl-related murder initially resonated with the public.

“Some folks are saying, Well, we have two dead kids here, so somebody needs to be charged,” he said.

But within days, authorities discovered drugs in the family’s home and charged an uncle with child neglect. Then the girl’s mother died of an overdose.

The tenor of comments on social media began to reflect differing viewpoints on the case, Mr. Davidson said. “Someone else will say, Well, that poor girl, her mom died and there’s drugs in the house, and she’s probably had a troubled childhood.”

So-called drug-induced homicide laws, like the one Mr. Davidson relied on, usually do not require prosecutors to prove that the person who provided the drug intended to kill the victim; the law presumes that if someone knowingly distributed fentanyl, death was foreseeable. Many prosecutors believe such laws are essential, given the crisis in their communities.

“If you are distributing this poison, our goal is to charge you with murder when there is an overdose out there,” Robert Luna, the Los Angeles County sheriff, said during a news conference about fentanyl last month. “Plain and simple, you’re distributing this poison, you’re going to go to prison for a long time for committing murder.”

John J. Flynn, the district attorney for Erie County, N.Y., and the president of the National District Attorneys Association, said prosecutors saw these laws as a valuable tool, especially for pursuing large-scale dealers.

Critics say the laws clash with the principles of Good Samaritan laws, which are typically exceptions to drug crimes for possession or distribution. These carve-outs offer immunity from prosecution to a drug user who calls 911 to save an overdosing companion. But critics say that if the charge could be murder, people might be reluctant to summon help.

A more common type of fentanyl crime law focuses on the kind of drug and weight at the time of seizure. Federal laws and, increasingly, state ones are attaching higher mandatory minimum sentences for ever-smaller amounts.

Mandatory minimums are seen as the most restrictive form of sentencing because they generally prevent judges from exercising discretion. At least six states established them in their fentanyl laws this year, according to the Addiction and Public Policy Initiative at the Georgetown University Law Center.

“Drug type and weight quantity are never the whole picture of a person who is committing a drug offense,” said Molly Gill, a former prosecutor who is now a vice president of policy for FAMM, a nonpartisan group formerly known as Families Against Mandatory Minimums. “It’s just one factor of many that should be considered, even when the drug is fentanyl.”

That framework largely ignores the context for a drug crime, she said, such as whether the defendant was addicted, coerced into trafficking by an abuser or even knew the drugs contained fentanyl.

Ultimately, many drug crime experts say, these laws do not meaningfully disrupt the vast sources of the drug supplies: synthetic drugs frequently ordered on the internet and processed in Mexico, often with chemicals from China and India.

“These are international drug-trafficking networks,” said Regina LaBelle, a former top drug policy official in the Obama and Biden administrations who is now the director of the Addiction and Public Policy Initiative at Georgetown. The drug supply is no longer about poppy farmers but chemists, she added. “This is about illicit finance,” she said. “So what do we need to do strategically, from a policy standpoint?”

Audio produced by Jack D’Isidoro.