In recent years, synthetic opioids have driven rising overdose death rates in the United States, undermining progress in combating the broader opioid and overdose crises. Since 2019, approximately 75 percent of all opioid-related deaths involved a synthetic product. In particular, illicitly manufactured fentanyl and its analogues, which can be substantially stronger than heroin or morphine, are increasingly present in street drugs, making it harder than ever for users to manage their own risks.

As part of an effort to prevent overdoses by reducing supply of these potent substances, the U.S. Drug Enforcement Administration (DEA) issued an emergency order in 2018 temporarily classifying fentanyl-related substances as Schedule I under the Controlled Substances Act. A Schedule I classification suggests a high potential for addiction and abuse and acknowledges no accepted medical use.

The emergency scheduling order is set to expire on Oct. 22, 2021, but the FIGHT Fentanyl Act aims to extend the policy, permanently categorizing the entire class of fentanyl-related substances as Schedule I. The R Street Institute opposes the extension of this approach, as it contributes to overcriminalization, has failed to reduce opioid deaths, and likely causes or exacerbates additional social and public health harms.

Strains Local Jails and Pretrial Services. Relying on the “tough-on-crime” law enforcement and prosecutorial approach to stem the tide of the synthetic opioid epidemic is correlated with significant increases in arrest and pre-trial detention in urban and rural jails.

The latter, in particular, lack adequate infrastructure, bed space and supervision services to divert people into treatment or to prosecute cases in an efficient manner. Further, a comprehensive 2021 review of fentanyl-related overdose deaths in jails and prisons indicated that 77 percent of overdoses were attributed to fentanyl or its analogues. Despite medication for opioid use disorder (MOUD) being the gold standard for treatment, the vast majority of correctional facilities do not offer medically assisted treatment to inmates. 

Contributes to Mass Incarceration. As with other forms of prohibition, the overcriminalization of fentanyl-related substances does not deter substance use, abuse or dependence, nor does it reduce street-level distribution. Contrary to the emergency ban’s goal of reducing widespread trafficking of fentanyl analogues, these arrests only comprise 5.8 percent of the federal drug trafficking caseload. The vast majority of sales are among street-level traffickers and substance-dependent buyers unintentionally misrepresenting substances as heroin or a diverted prescription. Fentanyl analogue offenders already experience the longest average federal sentences compared to other major drug types. Minimum mandatory sentences for preemptively banned substances that have not been scientifically analyzed for potency and harm without specific post-conviction relief contributes to mass incarceration and the associated collateral consequences of continued housing instability, unemployment and generational poverty.

Disproportionately affects BIPOC. The criminal justice consequences of overcriminalization disproportionately impact people of color, especially African Americans. Nationwide, Black, Hispanic and white populations report similar rates of past month use of illicit drugs. However, the U.S. Sentencing Commission reports significant racial disparities in the prosecution of fentanyl cases, with people of color comprising almost 75 percent of those sentenced in 2019. This also holds true for federal convictions in cases involving fentanyl analogues, for which 68 percent of those sentenced were people of color. This perpetuates the racial and ethnic biases, institutional harms and generational consequences of the failed War on Drugs and risks further damage to the already fraught relations between vulnerable communities and first responders, especially law enforcement.

Disrupts Access to Treatment and Harm Reduction. The negative effects of detaining and incarcerating individuals for possession extend to health, undermining addiction treatment and harm reduction efforts. Institutions are often ill-equipped to support inmates’ safe detox or withdrawal, and the vast majority lack evidence-based public health programs such as syringe access or opioid substitution therapy for incarcerated and recently released individuals. These interruptions in care hinder cessation attempts, increase overdose risk and contribute to increased risk for infectious diseases, such as HIV and Hepatitis C.

Reduces “Good Samaritan” Practices. Fear of incarceration and encounters with law enforcement have been consistently shown to reduce the likelihood of calling 911 during an overdose emergency. Consequently, many states have enacted Good Samaritan Laws to protect individuals seeking emergency medical attention or naloxone follow-up care in response to their own or another’s drug overdose. These laws typically provide immunity from arrest, charge or prosecution, even if the caller is in possession of specified controlled substances, and a growing body of research suggests they can reduce overdose deaths. However, the laws’ details, including which drugs are covered, vary greatly across states, as does population awareness of the protections offered. Increased criminalization of fentanyl-related substances and subsequent fear of incarceration may serve as barriers to seeking the medical care that can be essential to surviving an overdose.

Harm Reduction is a Better Alternative. The R Street Institute supports policy that is grounded in science. As such, we oppose the FIGHT Fentanyl Act, which research indicates would do more harm than good. As an alternative, we support approaches that seek to tackle the opioid overdose crisis by supporting harm reduction strategies such as national Good Samaritan legislation, enhanced access to naloxone and fentanyl test kits (where appropriate), syringe services programs and more.

Image credit: Sherry Young

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