Texas Gov. Greg Abbott, center, speaks as Public Safety Director Steve McCraw, left, looks on at a news conference after Abbott met with state and local law enforcement to discuss measures addressing the growing problem of fentanyl in October 2022 in Beaumont, Texas. Texas is among the states imposing new or harsher penalties related to fentanyl. Photo by Brandon Bell/Getty Images, via Indiana Capital Chronicle.

By Amanda Hernandez
Indiana Capital Chronicle

INDIANAPOLIS — As they struggle to reduce drug overdose deaths, policymakers across the United States are embroiled in a heated debate over creating and increasing criminal penalties related to fentanyl, a powerful synthetic opioid that’s up to 100 times more potent than morphine.

Legislators pushing the new wave of criminal penalties say the laws will deter drug distributors and hold offenders accountable. But opponents — including some public health officials — warn of potential consequences such as worsening the opioid crisis and pushing users toward more dangerous synthetic alternatives.

As of this month, 28 states have enacted one or more fentanyl criminal provisions, according to the Legislative Analysis and Public Policy Association, which researches and drafts potential legislation on public safety and substance use.

In this year’s legislative sessions alone, lawmakers introduced hundreds of fentanyl crime bills in at least 46 state legislatures, according to the National Conference of State Legislatures. While they vary, the bills generally would increase or stiffen penalties for the illegal production, possession and distribution of the substance.

Lawmakers in Virginia designated fentanyl as “a weapon of terrorism,” enacting a bill this spring that makes knowingly manufacturing or distributing substances containing any detectable amount of fentanyl punishable by up to 10 years of jail time.

An Iowa statute, signed into law in May, enhanced the penalties for selling and manufacturing fentanyl, with prison sentences ranging from up to 10 years to up to 50 years. While the bill passed with bipartisan support, some Democrats also proposed that the state improve access to substance use treatment and resources, such as fentanyl testing strips, which remain illegal in Iowa.

Arkansas and Texas are the latest states to pass legislation that makes it a homicide to give fentanyl to someone who then dies of an overdose. About 30 other states and the District of Columbia have laws, known as drug-induced homicide laws, that allow murder prosecutions, even in cases where individuals share drugs socially, if those drugs contain lethal doses.

Texas’ new law imposes harsher penalties, including first-degree felony charges for those involved in manufacturing, distributing or possessing with intent to deliver between 200 and 400 grams of fentanyl, and second-degree felony charges for those involved in manufacturing or distributing fentanyl that results in an overdose.

The law’s supporters say the measure will not only protect Texans from potentially overdosing, but also hold distributors accountable.

“The intent is to deter the behavior and make it to where prosecutors throughout the state can take the sort of action that needs to be taken with this drug,” Texas Rep. David Cook, a Republican who co-authored the bill, said in an interview with Stateline. “This is a necessary measure in order to protect the public safety of our citizens.”

Republican state Rep. Kronda Thimesch, who also co-authored the bill, wrote in an email that the law garnered “overwhelming support” from families, community leaders and law enforcement agencies across the state.

“We have learned from the past that stronger penalties do work. We need to use every resource available to go after drug dealers,” Thimesch wrote.

But critics raise concerns over whether these types of measures truly address the root causes of substance use.

“You cannot deal with fentanyl without dealing with the overall issue of drug addiction and drug usage,” Texas state Rep. Gene Wu, a Democrat who voted against the measure, said in an interview with Stateline.

“If you make illegal things that human beings want, you will make things worse,” Wu said. “You will create more organized crime, you will create more unintended consequences, you will create more disparity and destruction in poor communities, because this crap never affects the communities of the people who make the laws.”

Some criminal justice advocates say fentanyl should be treated as a public health issue rather than a law enforcement problem.

By attaching criminal consequences to drug-related incidents, fear and stigma may deter people with substance use disorders from reaching out for help, said Maritza Perez Medina, the director of federal affairs for the Drug Policy Alliance, which advocates for reducing criminal drug penalties.

“Public health interventions, things like harm reduction services would actually go a long way in curbing overdose deaths and connecting people to treatment. Unfortunately, that’s not the route that many lawmakers both at the state and federal level are choosing to follow,” Perez Medina said in an interview with Stateline. “There’s still an overinvestment in criminal justice approaches at the expense of public health solutions.”

Criminalization measures also have a disproportionate impact on marginalized communities, which amplify existing racial and socioeconomic disparities, Perez Medina said.

“[These criminalization policies are] also falling on people who are on the lowest level of the drug distribution chain, people who probably also use drugs who would benefit most from public health interventions rather than handcuffs,” she said.

More overdoses

Fentanyl, originally developed in 1959 and introduced in the 1960s, emerged as an intravenous anesthetic and is used particularly to relieve pain after operations, according to the federal Drug Enforcement Administration. Fentanyl also serves as a medication for patients with chronic pain who have developed a tolerance to other opioids.

Before 2013, overdose outbreaks linked to illegally manufactured fentanyl were often localized and attributed to specific chemists in Mexico or elsewhere, according to Beau Kilmer, the co-director of the Rand Drug Policy Research Center, a nonpartisan research group.

A shift occurred when illegally manufactured fentanyl began flowing into the United States from China in 2013, leading to its widespread distribution, Kilmer said. Over time, dealers mixed fentanyl with heroin and later transitioned to counterfeit pills.

See the original story here.

Texas Gov. Greg Abbott, center, speaks as Public Safety Director Steve McCraw, left, looks on at a news conference after Abbott met with state and local law enforcement to discuss measures addressing the growing problem of fentanyl in October 2022 in Beaumont, Texas. Texas is among the states imposing new or harsher penalties related to fentanyl. Photo by Brandon Bell/Getty Images, via Indiana Capital Chronicle.