Two different but equally disturbing images abound in the fentanyl era.
The first: an emaciated fentanyl user, burnt square of foil in hand, collapsed on a city sidewalk. The second: a healthy young person who dies tragically after taking a pill she did not know contained fentanyl.
The first image fuels fear and disgust; the second, grief and anger. In response, many are calling for a revival of drug war tactics, including tougher penalties for drug dealers and crackdowns on the public use of drugs. This year alone, more than 40 state legislatures introduced new fentanyl-related laws. At least 23 states and the federal government now have drug-induced homicide laws on the books, and prosecutions are on the rise.
The situation is urgent. Last year saw a record of nearly 110,000 drug overdoses in the United States, more than two-thirds of which involved synthetic opioids, principally fentanyl. More people now die from overdose than from car crashes and gun shots combined.
But the drug war failed. Reviving its tactics won’t work in the fentanyl era either. Heightened enforcement and tough new laws won’t deter dealers from dealing or reduce the dangers of illicit drugs.
Potent synthetic drugs like fentanyl are ideal for organized crime. Derived from widely available chemicals, they are inexpensive to produce, compact and easily transported. The fact that an entire city can be supplied for a month by less than a trunkful of fentanyl makes police confiscations simply a cost of doing business. And despite fentanyl’s low cost, profit margins for large scale distributors remain high.
Moreover, large-scale distributors are rarely arrested. Many of the low-level dealers who are the main target of heightened enforcement contend with substance-use disorder themselves, and few actually know what is in the products they sell. The threat of a long sentence is unlikely to deter people who are compelled by addiction and/or financial circumstances to sell drugs at the retail level. And tough new penalties for distributing adulterants like xylazine that are mixed in the drug supply at the wholesale level won’t affect what is sold on the streets.
But drug war tactics are not just ineffective — they make things worse. Heightened enforcement destabilizes drug markets, triggering violence between dealers. Short-term jail stays increase the risk of overdose. And both jail and prison sentences reinforce the cycle of incarceration and poverty that disproportionately affects Black, brown, and poor Americans.
If throwing dealers and users in jail will make things worse, what will help?
In the long term, answers include addressing the underlying issues that fuel harmful drug use, including homelessness and lack of access to mental health services. Investment in the development of new treatments is also crucial.
But the unprecedented nature of the fentanyl crisis also requires novel interventions that make the drug supply safer. As a first step, drug-checking tools should be widely available to users so that they can be sure the drugs they buy don’t contain deadly concentrations of fentanyl or unwanted adulterants.
Next, we should consider providing pharmaceutical-grade heroin (in addition to methadone and Suboxone) to long-term opioid users for whom other treatments haven’t worked. Heroin-assisted treatment (which has been used in Europe and Canada) reduces drug deaths and crime, and enables many long-term opioid users to live healthier, more productive lives. Similarly, safe supply initiatives that provide pharmaceutical grade fentanyl to long-term users have been found to reduce both overdoses and drug use over time.
Finally, we should identify ways to incentivize low-level dealers to test their products and reward those who distribute safer drugs with de facto decriminalization. This would require deepening our understanding of drug market dynamics. We recognize that many people will see this as a radical step, but it is not without precedent. For example, informal arrangements have long existed between syringe exchange services and law enforcement. These arrangements save lives and allow syringe exchange services to play an important role in connecting people who use drugs to health services and treatment programs.
As the fentanyl crisis worsens, we must resist the temptation to revive the failed policies of the past. Fundamentally new approaches that increase access to treatment and housing, and reduce the dangers posed by synthetic drugs, are needed. While many questions about exactly about how these strategies will work remain unanswered, one thing is clear: throwing users and low-level dealers in jail will do nothing to curtail the tragic loss of life unfolding across the country.
Dr. Katherine Beckett is S. Frank Miyamoto Professor of Sociology and Professor of Law, Societies, and Justice at the University of Washington in Seattle. Dr. Fernando Montero is a Post-Doctoral Fellow at Columbia University’s HIV Center for Clinical and Behavioral Studies.