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State Laws Are Treating Fentanyl Like the New Crack—And Making the Same Mistakes of the 80s and 90s

8 minute read

Since the U.S. drug war was declared in 1971, various drugs have been identified as public enemy number one—from crack cocaine, in the 1980s, to prescription opioids in the early 2000s. Today, the primary villain is fentanyl, a synthetic opioid about 50 times more potent than heroin. In 2021, more than 71,000 people in the U.S. died after overdoses involving synthetic opioids—mostly fentanyl, according to provisional data released by the National Center for Health Statistics on May 11.

Such a deadly drug necessitates a firm public health response, and fortunately, decades of evidence have shown there are tools that can avert overdoses, including the medication naloxone (sold under the brand name Narcan). However, fear of fentanyl and a desire to look proactive are driving many state lawmakers to take approaches which, in the past, have caused more harm than good—namely, punitive policies which lock up drug dealers and users alike for lengthy periods of time, and contribute to mass incarceration. Evidence abounds that such policies are ineffective: for instance, one 2018 analysis from Pew found harsher penalties for drug possession did not reduce use or overdoses, and a 2014 National Research Council report found that increases in successfully prosecuted drug crimes did not clearly drive down drug use, and had a disparate impact on Black and Hispanic communities.

As opioid and especially fentanyl-related deaths have risen, some states have implemented harm-reduction policies like expanding access to drugs that treat opioid use disorder, or legalizing fentanyl test strips and in some cases making them available for free, to make it easier for drug users to figure out before it’s too late whether their drugs are adulterated with fentanyl. But at the same time, a number of states have passed, or are currently considering, new legislation to ramp up penalties for drug crimes, many of which explicitly refer to fentanyl. Mississippi, for instance, recently passed a law that, as of July 1, adds additional penalties for giving someone fentanyl that results in death. Kentucky recently passed a law increasing mandatory prison time for those found guilty of bringing fentanyl into the state with the intent to sell or distribute. This March, Wisconsin enacted a law making “manufacturing, distributing, or delivering” any amount of fentanyl a felony.

Colorado is a particularly useful case study. In 2020, 1,477 Coloradans died from drug overdoses, up 38% from the year before, an increase the Colorado Health Institute largely attributes to fentanyl. In response, on May 11, the state legislature passed the Fentanyl Accountability and Prevention Act, which would expand access to drugs that help treat opioid use disorder and allocate funds for education about fentanyl. However, the proposed law would also make possessing more than a gram of any drug a felony if it contains any amount of fentanyl, which advocates say could make the overdose crisis worse by driving users into hiding or locking them in prison.

Like crack cocaine before it—which was falsely blamed for making users more violent—the focus on fentanyl is threaded with fear-mongering and misinformation. In April, Colorado Public Radio asked Governor Jared Polis if he thought making possession of fentanyl a felony in the state would have similarly disastrous results as the War on Drugs started by President Richard Nixon in the 1970’s had on the U.S.. “You have to think of fentanyl more as a poison than a drug,” Polis responded, comparing it to anthrax. Indeed, local news across states has been flooded with similar misinformation about fentanyl, including stories about first responders who claimed they’d suffered a fentanyl overdose through skin contact with patients who had been using—although experts say that overdosing in such a way is nearly impossible.

Such narratives enable politicians to paint fentanyl—and those who traffic in it—as particularly nefarious. But really, it’s a public health crisis—not a crisis of criminality. “What we need is to ramp up the things that we know prevent people from dying of overdoses, and not continue to focus on the enforcement side, where we have very little evidence that that improves public health outcomes,” says Robin Pollini, an associate professor of public health at West Virginia University.

The View From the Ground

One of advocates’ greatest fears about the legislation is that it will expand the imprisonment of drug users, and contribute to the socioeconomic instability that often fuels addiction and abuse in the first place. Colorado’s bill would only apply to those knowingly carrying more than one gram of any substance containing the drug, which presupposes that carrying this amount means the person is a dealer. “I would say the goal of this bill, if implemented properly, is not to put drug users in jail. The goal of this bill is to put drug dealers in jail,” says Colorado Attorney General Philip Weiser.

However, experts say that there are many reasons why someone might carry more than a single gram for personal use. For one, the amount of fentanyl in street drugs can vary greatly, which means that users are unlikely to actually know how much they’re carrying. Additionally, compared to other opioids, fentanyl provides a shorter but more powerful high, which means someone on it is likely using multiple times a day to avoid an agonizing withdrawal. That means they’re probably buying as much as they can whenever they can—especially if they have limited access to transportation or live in a rural area.

Colorado’s attempt to separate the “users” from the “dealers” is based on a “false distinction,” says Dr. Sarah Axelrath, who treats Denver patients with substance use disorder. Most of the drug dealers she encounters are users themselves, and are engaging in “subsistence level drug distribution:” trading drugs to sustain their addiction, and to meet basic needs. In such communities, a drug dealer is less likely to be a shadowy stranger than a trusted friend—and the person who is buying one day may be selling the next. That’s why about 225 drug users who use services at the Harm Reduction Action Center in Denver have signed “Do Not Prosecute” forms, created by the activist group Urban Survivors Union, which are meant to make a plea to law enforcement that, in the event of an overdose, they not go after the person who provided the drugs. The point they want to make to legislators, says Center director Lisa Raville, is that when police arrest drug dealers, “they’re not getting the popularly envisioned large drug seller or cartel. It’s family and loved ones,” who both buy and sell at low levels.

Harm, Not Harm Reduction

Experts fear that laws like that under consideration in Colorado will backfire, exacerbating the opioid epidemic. For one thing, a person who is convicted of a felony and given a prison sentence for possession of opioids is likely to become destabilized and lose their support system, making it even harder to overcome substance use disorder. There is “unintended and collateral damage that happens from being incarcerated,” says Dr. Joshua Barocas, an infectious disease doctor and associate professor at University of Colorado School of Medicine. That includes increased instability in housing, food, and job access, all of which could lead an opioid user to relapse.

More immediately, criminalizing fentanyl could deter people from saving lives. When someone overdoses on opioids, their best hope for survival is to get a shot of naloxone. But if the only person around to administer the treatment (or to call for help) is also either an opioid user or seller (or both), they might waste precious minutes wavering over the decision whether or not to call for help, out of concern of arrest. “In general, these kinds of laws drive drug use further underground,” says Robin Pollini, an associate professor of public health at West Virginia University. “The higher the penalties on drug use, or the higher level of policing around drug use, the less likely people are to present in public for services they need.”

Then there’s the possibility that cracking down on fentanyl could lead to the emergence of even deadlier drugs. One of the reasons fentanyl became so dominant is that it’s easier for drug dealers to move through a punitive system compared to other opioids—it can be made from common ingredients, instead of grown in an opium plant, and it’s more compact, making it easier to transport and hide. Already, drug producers are developing new and more dangerous chemical analogs of fentanyl that drug tests can’t detect.

Among Colorado health care providers who work with drug users, and have known many people who have died of overdoses, there’s a sense that the proposed bill is a wasted opportunity to invest the state’s resources in tools that are actually proven to stop overdoses. “The evidence is just so clear that criminalization and felonization and incarceration will not do anything to decrease rates of substance use disorder or even recreational drug use, and it certainly won’t decrease rates of overdose deaths,” says Axelrath. “But we have things that work. And so it is frustrating to watch our resources be funneled into interventions that we know from 50 years of both research and practice aren’t effective.”

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