Series: From the President

In the Fentanyl Crisis, Lawmakers Are Making the Same Mistakes

Harsh sentencing doesn’t curb drug use or overdose deaths
Nicholas Turner President & Director // Nazish Dholakia Senior Writer
Aug 02, 2023

The “War on Drugs” was inaugurated more than 50 years ago, and the ensuing decades have laid bare its abject failure. This imprudent campaign has led to the incarceration of nearly 500,000 people per year for drug law violations, fueling mass incarceration and costing taxpayers millions. It has taken lives—failing to curtail drug use and prevent overdose deaths—and has disproportionately harmed Black people, exacerbating racial disparities in the criminal legal system.

And yet, lawmakers are at it again.

Hundreds of fentanyl crime bills were introduced in at least 46 states during this past legislative session, according to the National Conference on State Legislatures. Many of those bills impose mandatory minimums for anyone convicted of possessing, distributing, selling, or manufacturing fentanyl or fentanyl analogs, also referred to as fentanyl-related substances. At the federal level, the Halt All Lethal Trafficking of Fentanyl Act (HALT Fentanyl Act), which has passed in the House of Representatives and currently sits in the Senate, would trigger new and increased mandatory minimum sentences for fentanyl-related substances.

Essentially, lawmakers are relying on the same stale and ineffective strategies that have led to mass incarceration, more dangerous drugs, and an overdose crisis—and which have done nothing to make our communities safer.

Fentanyl, a Schedule II drug, can be prescribed for pain in small, regulated doses. But illicit versions of fentanyl have exploded in the last few years. The highly addictive synthetic opioid—up to 50 times more powerful than heroin—has devastated communities. More than two-thirds of the nearly 110,000 overdose deaths in the United States in 2022 were linked to fentanyl. Illicit versions of the drug are often mixed in with other drugs, like cocaine, which means users may not even realize they’ve taken fentanyl. Make no mistake—this is a real crisis.

Lawmakers need to address this emergency, but more criminalization and harsher penalties are far from an appropriate response. As we’ve seen in the past, imposing mandatory minimum sentences will not stop drug use, lower crime rates, or prevent deaths. Instead, it will fuel further incarceration. Research shows that the perceived harshness of a potential sentence does little to deter drug use or drug-related offenses. Mandatory minimum sentences also limit a judge’s discretion to consider a person’s circumstances but give prosecutors tremendous power in plea bargaining. Both California and Michigan have acted on these findings by eliminating mandatory minimums for drug offenses.

“We have every reason to think that prosecution of fentanyl will increase, and we’ll start to see a real uptick in drug-related incarceration,” said Marta Nelson, director of government strategy at Vera. “[The HALT Fentanyl Act is] not going to stop the drug trade, it’s not going to stop people from dying. In fact, it’s going to have the opposite effect.”

Increasing criminal penalties for fentanyl-related substances doesn't curb drug use, but it can discourage people from seeking help, for fear of being criminalized. Lawmakers should instead be expanding treatment resources and making them more accessible.

There are other serious concerns about the HALT Fentanyl Act, too. If passed, it would classify any fentanyl-related substance—broadly defined as any drug with the same molecular structure as fentanyl—as Schedule I. This designation assumes that all these substances are harmful, without requiring any testing—even though previous research has shown that this is not necessarily true. Of the few fentanyl-related substances that have been tested on a limited basis by the Food and Drug Administration, at least one showed properties similar to the lifesaving overdose-reversal medication naloxone (Narcan) and others were found to be completely harmless. By classifying all fentanyl-related substances as Schedule I drugs without requiring scientific evidence, the HALT Fentanyl Act will impede research into potentially lifesaving treatments.

“The HALT Fentanyl Act basically throws out any requirement that you test a substance to make sure it’s actually harmful,” said Nelson. “We could put someone in prison for something that may not be harmful. That’s not how criminal law is supposed to work.”

Instead of depleting taxpayer dollars while doing nothing to improve public safety, Congress should invest in real solutions. For example, the STOP Fentanyl Overdoses Act expands research on fentanyl and fentanyl-related substances while prioritizing treatment, harm reduction, and other resources necessary to turn the tide on the overdose crisis. Another bill, the TEST Act, addresses the affront to science that is class-wide scheduling. It requires the government to test fentanyl-related substances and move them off Schedule I if the substances do not have a harmful pharmacological effect.

Harsher sentences and mandatory minimums are not the answer to the fentanyl crisis, and it is irresponsible for lawmakers to double down on ineffective and destructive policies that have failed us before. We need to rely on evidence-based approaches to address the root causes of substance use. Those strategies—not more criminalization—will save lives.