Why fentanyl trafficking enforcement may fall short

In 2022, more than 100,000 Americans died from a drug overdose, according to the Centers for Disease Control and Prevention. Almost 70% of those deaths involved synthetic opioids, like fentanyl, shining a fatal light on the drug crisis that has wracked many communities across the nation. 

New York City, for example, saw 3,026 overdose deaths last year, a 12% increase from 2021, according to data released last week from the city’s Health Department. Fentanyl was present in 81% of those deaths. 

In a bid to curtail the fentanyl crisis, states have introduced more than 600 bills during the 2023 legislative session and passed at least 103 into law, according to the National Conference of State Legislatures. A lot of those bills seek to increase awareness efforts about the risks of fentanyl and fund training programs for first responders. But many also target drug traffickers through penalty increases. 

Take, for example, Texas, where on average five people die every day from a fentanyl overdose. Lawmakers passed a bill in June to allow prosecutors in the state to charge individuals who provide others with a fatal dose of fentanyl with murder. It also requires that a victim’s death certificate include the terms fentanyl poisoning or fentanyl toxicity, if toxicology or autopsy results indicate that a lethal amount was in the person’s system. Advocates of the bill say it will help local law enforcement agencies better understand the drug’s presence in their communities and crack down on suppliers. 

Meanwhile, Montana enacted legislation in May that sets a mandatory minimum sentence of two years in jail or a $50,000 fine—or both—for fentanyl traffickers convicted in the state of distributing more than 10 grams. The law also encompasses fentanyl analogues, or drugs that have different chemical structures but similar effects to the original substance. 

Increased punishments have also been a priority for South Carolina, whose governor signed a bill in June to make trafficking fentanyl a felony offense and to add the substance to the list of Schedule I controlled substances, or drugs unapproved for medical use and have a high potential for abuse, according to the U.S. Drug Enforcement Administration, or DEA. “A first-time offense of trafficking four to 14 grams of fentanyl is punishable by at least seven and up to 25 years in prison and a $50,000 fine,” according to a press release on the bill. 

It's worth noting, according to Katharine Neill Harris, a fellow in drug policy at Rice University’s Baker Institute for Public Policy, that while these policies are cropping up in mostly conservative states, both Democratic and Republican policymakers are showing support for them. South Carolina’s bill, for instance, passed the state Senate unanimously and passed the state House with only one dissenting vote before it was signed by Gov. Henry McMaster.

In the face of a deadly fentanyl crisis, lawmakers are trying anything to bring the number of deaths down. It shows, said Neill Harris, that there’s “hope that penalty enhancements will take more of the drugs off the street.”   

But experts like Neill Harris are doubtful such laws will be successful in doing so.

The basis for this skepticism is history. Neill Harris points to the early 2000s when prescription opioids’ grip on Americans started tightening. An “oversupply” of the drug from major pharmaceutical companies, she said, helped fuel thousands of Americans’ addiction to the substance. By the end of the decade, the DEA tried to curtail opioid addictions through enforcement. For instance, the agency began filing civil cases against distributors in a bid to slow down the flow of opioids to users, a move that was mostly ineffective and led to a rise in demand for alternative substances. 

“That’s why around 2010, [the country] started to see a spike in heroin overdoses,” Neill Harris said. “That’s what people turned to when they couldn’t find any more prescription opioids.” 

Plus, the consequences of penalty enhancements far outweigh the benefits. The fentanyl trafficking laws could be “a repeat of what [governments] did in the 1980s,” Neill Harris said, referring to the war on drugs, a political push aimed at increasing punishment for the use and possession of drugs like crack. But the campaign has been criticized for its decades-long effect on the mass incarceration and discrimination of people of color. Communities were “completely decimated,” she said, with so many working-age individuals behind bars. It caused destabilization among families and even local economies as formerly incarcerated people struggled to obtain employment, housing and education opportunities. 

Another downside to trafficking legislation could be the “dichotomy” it creates among drug users and drug suppliers, Neill Harris said. As state and local governments start exploring treatment-based drug reform for users, sellers are facing an increasingly punitive path. The previously mentioned Texas bill is an example of how two people could intend to use drugs, she said, but the one who supplied the substance could face harsher punishments. 

“The effort to try to separate the user from the seller, in practice, just doesn’t work,” Neill Harris said. That’s because trafficking laws fail to address the real issue—the United States’ “large appetite for drugs.” 

Even if a law enforcement agency takes down a big fentanyl supplier, somebody else can rise up to meet the demand, she said. That could mean fentanyl continues its path of destruction across American communities, or a new substance takes its place. In recent years, for instance, a synthetic opioid called isotonitazene—also known as nitazene or ISO—has caught the attention of the DEA because of its high potency, which can put users at an increased risk of overdose. The agency has issued warnings about its emerging presence from the Midwest to the east coast. 

“These penalty enhancements that states are passing related to fentanyl don’t mention nitazene at all,” Neill Harris said. Drug traffickers may cut back their fentanyl supply in light of penalty enhancements, but now “there’s something equally or more lethal they can switch to.” 

To effectively address the fentanyl crisis, Neill Harris suggests that policymakers target drug demand instead. Otherwise, she said, “there’s money to be made in supplying that demand.”