As the drug abuse and overdose crisis that has plagued the United States for two decades grows even more deadly, state governments are scrambling to find ways to stem the destruction wrought by fentanyl and other synthetic opioids.
In state houses across the country, lawmakers have considered and passed legislation on two fronts: reducing risk to users and increasing penalties for trafficking fentanyl or mixing it with other drugs. Meanwhile, Republican state attorneys general are calling for more federal action, while some GOP governors are deploying National Guard units with a mission that includes stopping the flow of fentanyl from Mexico.
“It’s a fine line in helping people and trying to get people clean, and at the same time incarcerating and getting drug dealers off the streets,” said Nathan Manning, a Republican state senator from the state of Ohio sponsoring legislation to clarify that materials used to test drugs for fentanyl are legal.
The urgency is heightened due to the increasing impact of drugs. Last year, the US Centers for Disease Control and Prevention reported that the country had reached a grim milestone. For the first time, more than 100,000 Americans had died of drug overdoses over a 12-month period. About two-thirds of the deaths were linked to fentanyl and other synthetic drugs, which can be 50 to 100 times more potent than morphine, heroin or prescription opioids.
The recent case of five West Point cadets who overdosed on fentanyl-containing cocaine during spring break in Florida has brought the dangers and pervasiveness of the fentanyl crisis back into the spotlight.
Drug precursor chemicals are shipped largely from China to Mexico, where much of the illicit fentanyl supply is produced in labs before being smuggled into the United States.
While users sometimes seek out fentanyl specifically, it and other synthetics with similar properties are often mixed with other drugs or made into counterfeit pills, so users are often unaware they are taking it.
Supporters say test strips can help prevent accidental overdoses drugs containing fentanyl. The strips are distributed at needle exchanges and sometimes at concerts or other events where drugs are expected to be sold or consumed.
Thomas Stuber, legislative director of The LCADA Way, an Ohio drug treatment organization that serves Lorain County and surrounding areas, lobbied for test strip legislation. It would also make it easier to access naloxone, a drug that can be used to revive people in the event of an opioid overdose.
“This is a harm reduction approach that has been widely accepted,” he said. “We can’t heal someone if they’re dead.”
Since last year, at least half a dozen states have enacted similar laws and at least a dozen more are considering them, according to a study by the National Conference of State Legislatures.
In West Virginia, the state hardest hit by opioids per capita, lawmakers passed a bill this month to legalize test strips. He is now heading towards the Governor.
The measure was sponsored by Republican lawmakers. But state delegate Mike Pushkin, a Democrat whose district includes central Charleston, has also pushed for greater access to fentanyl strips. He said the situation worsened last year when a state law tightened regulations on needle exchanges, causing some of them to close.
Pushkin, who is also in long-term rehab, is pleased with the passage of the test strip bill but upset about another measure passed this month that would increase penalties for trafficking fentanyl. This bill would also create a new crime of adding fentanyl to another drug.
“Their first reaction is, ‘We have to do something,'” he said. “It’s not just about doing something, it’s about doing the right thing that actually gets results.”
But for many lawmakers, ensuring that tough criminal penalties apply to fentanyl is a priority.
California Congresswoman Janet Nguyen, a Republican, introduced a measure that would make penalties for trafficking fentanyl as severe as those for selling cocaine or heroin. The Republican represents Orange County, where more than 600 fentanyl-related deaths were reported last year.
“It sends messages to those who are not afraid to sell these drugs that there is a longer and heavier sentence than you might think,” said Nguyen, whose bill did not pass. to pass his house’s public safety committee in a 5-2 vote last week. She said after the bill fell through that she was considering trying again.
She said the committee members emphasized compassion for drug addicts, which she said she agreed with.
“The less these pills are available, the better,” Nguyen said. “And it goes after the drug dealer.”
On the same day his measure failed to advance, a California Democratic lawmaker announced another invoice to increase penalties for fentanyl trafficking.
The National Conference of State Legislatures found 12 states with fentanyl-specific drug trafficking or possession laws last year. Similar measures have been introduced or considered since the start of 2021 in at least 19 states, The Associated Press found in an analysis of bills compiled by LegiScan. This does not include moves to add more synthetic opioids to controlled substance lists to reflect federal law; these have been adopted in many states, with bipartisan support.
Fentanyl has been in the limelight in Colorado since February, when five people were found dead in a suburban Denver apartment following an overdose of fentanyl mixed with cocaine.
According to state law, possession with intent to distribute less than 14 grams of fentanyl is an offense normally punishable by two to four years in prison. But fentanyl is so potent that 14 grams can add up to 700 lethal doses, according to a calculation used by the United States Drug Enforcement Agency.
“It makes it impossible to hold the dealer accountable for the deaths of the drugs they sell,” Colorado House Speaker Alec Garnett, a Democrat, said in an interview.
He and a bipartisan group of lawmakers last week unveiled a bill also backed by Democratic Gov. Jared Polis that would increase penalties for dealers with small amounts of fentanyl and in cases where the drug causes death. The legislation would also increase the accessibility of naloxone and test strips while directing people who possess fentanyl to education and treatment programs.
Maritza Perez, director of national affairs at the Drug Policy Alliance, a group that advocates harm reduction measures, is skeptical of legislation that would increase criminal penalties.
“We have the highest incarceration rate in the world and we are also setting records for overdose deaths,” she said.
Democratic governors focus primarily on harm reduction methods. Among them is Illinois Governor Jay Pritzker, who issued a wide overdose action plan last month.
Several Republican governors and attorneys general have responded to the rising death toll with administrative law enforcement efforts and pushing for increased federal intervention.
Last year, Texas Governor Greg Abbott and Arizona Governor Doug Ducey called on states to help secure the border with Mexico. Along with trying to stop people from entering the United States, stopping the flow of fentanyl has been cited as a reason. Several other Republican governors sent contingents of state troopers or National Guard units.
The Texas Military Department said that from March 2021 to the start of this month, its troops near the border confiscated more than 1,200 pounds (540 kilograms) of fentanyl. By comparison, federal authorities said they confiscated about 11,000 pounds (4,990 kilograms) in 2021 – still a fraction of what entered the country.
Last year, the US Department of Justice filed about 2,700 cases involving crimes related to the distribution of fentanyl and similar synthetic drugs, up nearly ten times from 2017. Still, officials in the Republican state criticize federal efforts to stop fentanyl from entering the country.
In January, 16 GOP state attorneys general sent a letter to US Secretary of State Antony Blinken calling on him to put more pressure on China and Mexico to stop the flow of fentanyl. These are steps that, according to Dr. Rahul Gupta, Director of National Drug Control Policy, are already underway.
In March, West Virginia Attorney General Patrick Morrisey called on U.S. Attorney General Merrick Garland for more enforcement on fentanyl trafficking and tougher sentences.
“Fentanyl is killing Americans from all walks of life in unprecedented numbers,” Morrisey said in an emailed statement to the AP, “and the federal government must respond with full force, across the board, using all the tools available to stem the tide of death.”