The Break Free Foundation opposes legislation that expands scheduling and penalties for fentanyl and fentanyl analogs
The Drug Policy Alliance and the Break Free Foundation opposes state legislation adding additional fentanyl analogs to the New York State Controlled substance list and establishing stricter penalties related to overdose deaths where fentanyl or fentanyl analogs are involved.
Break Free envisions a just society in which the use and regulation of drugs are grounded in science, compassion, health, and human rights; in which people are no longer punished for what they put into their own bodies; and in which the fears, prejudices, and punitive prohibitions of today are no more.
Throughout DPA and Break Free’s work, we have found that increased penalties and criminalization have not reduced the distribution of fentanyl and other synthetics nor does increase criminalization prevent overdoses. In fact, over 6,100 New Yorkers died from a preventable overdose in 2021 alone – the second consecutive year of the highest number of recorded deaths in New York State history. Increased penalties and criminalization are not just ineffective, they are actively harmful while also undermining current efforts to address the opioid overdose crisis and disproportionately harming communities of color.
Increasing penalties for the use or sale of fentanyl and fentanyl analogs will disproportionately harm communities devastated by the war on drugs.
We know from a preponderance of the evidence that these harms disproportionately impacted and continue to impact poor people and communities of color. One recent study of federal charges revealed that 75% of all individuals sentenced for fentanyl trafficking were people of color. In this way, despite recent rhetoric about a “gentler” approach to substance use, increasing penalties on fentanyl and other synthetic substances is akin to the devastating crack vs. powder cocaine disparities of the past.
Increasing penalties for the use or sale of fentanyl and fentanyl analogs will not reduce the supply of these substances or make the drug supply safer.
Substantial evidence demonstrates that criminal penalties do not have any effect on reducing either the supply of drugs or the demand for them. Studies on tough-on-crime policies clearly show that incarceration does not decrease the demand for drugs. One study found that states that increase their incarceration rates do not experience a decrease in drug use. When a drug seller is incarcerated, the supply of drugs is not reduced nor is the drug market impacted. Because the drug market is driven by demand rather than supply, research indicates that an incarcerated seller will simply be replaced by another individual to fill the market demand.
The penalties incurred by being on the Controlled Substances list will not reduce fentanyl and other synthetic drug distribution in New York. The process of adding fentanyl and other substances to drug formulations (including cutting heroin and other drugs with fentanyl) is usually done early in the production process. According to the Drug Enforcement Administration, these substances are generally added to heroin before it enters the U.S. Low-level sellers thus may not know they are distributing fentanyl. These proposals would not reduce the inclusion of fentanyl in the drug supply, as it takes place high in the distribution chain.
Increasing penalties for the use or sale of fentanyl and fentanyl analogs will criminalize and increase harm to people with substance use disorder, who are in need of harm reduction approaches.
When we incarcerate people for the distribution of drugs, we often inadvertently lock up people impacted by the opioid overdose crisis. A Bureau of Justice report found that 70% of people incarcerated for drug trafficking at state prisons used drugs prior to the offense. These individuals often distribute drugs, not for profit, but to support their own substance use disorder. Many individuals who distribute opioids are not high-level traffickers but low-level sellers who are friends or acquaintances of the user. Increased penalties for distribution will most likely affect replaceable low-level sellers, while high-level sellers will likely remain unaffected and continue to drive distribution. The United States Sentencing Commission data, for instance, demonstrates that a majority of defendants sentenced for federal fentanyl offenses are low-level dealers.
Increasing penalties for the use or sale of fentanyl and fentanyl analogs threatens overdose response efforts.
The imposition of harsh penalties for possession and/or distribution could also undermine New York’s Good Samaritan law, which encourages people to contact emergency services in case of an overdose. The threat of police involvement and over a decade in prison may make an individual hesitant to call emergency services or run from the scene rather than help the victim.
Increasing penalties related to overdose deaths where fentanyl and other substances are involved is detrimental to public health.
Just as increased scheduling and criminal penalties are ineffective to prevent overdose deaths, so are stricter penalties related to overdose deaths where fentanyl and other substances are involved.
The increasing use of archaic drug-induced homicide statutes does not protect individual or public health. There is ample evidence indicating that relying on law enforcement intervention is detrimental to those who use drugs or witness a drug overdose. Those who favor the use and proliferation of drug-induced homicide measures and severe sentencing for drug sellers contend that the threat of harsh sentencing will deter drug use, drug selling, and prevent fatal overdoses. This logic is fundamentally false, and decades of ineffectual drug war policies provide evidence to refute the notion. Arresting and detaining a person for selling, or giving, a small amount of drugs to another person does nothing to interrupt the availability of opioids or any other illegal substance. While these statutes do nothing to decrease use, they do increase drug-war-fueled racial disparities in the criminal justice system. There is abundant research showing that racial bias influences prosecutors’ decision-making, and there is no reason to believe that this will not be evident in the enforcement of drug-induced homicide laws.
Instead of criminalization, the Legislature can help save lives by:
Decriminalizing medication for opioid use disorder: Medication for opioid use disorder (buprenorphine and methadone) is considered the gold standard for opioid use disorder treatment. Medication-assisted treatment increases patients’ retention in treatment, improves social functioning, reduces the risks of transmission of hepatitis C and HIV, reduces engagement in the criminal legal system, and reduces overdose deaths. Unfortunately, because of stigma, structural racism, and economic disparities, people living with opioid use disorder experience significant barriers to accessing prescribed buprenorphine. Further, because buprenorphine is a Schedule III drug, it is illegal to use without a prescription and those found in possession of diverted buprenorphine or suspected of selling diverted prescriptions are at risk of arrest.
S699/A612 will remove buprenorphine from the New York State Schedule of Controlled Substances, a critical step in expanding access to life-saving treatment in New York State in the midst of a catastrophic overdose crisis. Decriminalizing buprenorphine possession is a public health strategy to reduce overdose deaths, enroll more New Yorkers in treatment, reduce stigma, and keep communities safe.
Expanding overdose prevention centers: Overdose Prevention Centers (OPCs) are controlled healthcare settings where people can more safely use pre-obtained drugs under clinical supervision and receive healthcare, counseling, and referrals to health and social services, including drug treatment. OPCs are able to prevent fatal overdoses, especially for high-risk populations, like street homeless individuals, and they foster stigma-free spaces for engaging a population that has traditionally been unlikely to participate in formal health care services.
The Safer Consumption Services Act (SCSA), S.399/A.338, allows the New York State Department of Health to authorize and fund community-based organizations to operate Overdose Prevention Centers (OPCs). Overdose Prevention Centers would be regulated by the New York State Department of Health, identically to Syringe Service Programs. SCSA would dramatically shift the tide in the overdose crisis in New York State. Because fentanyl overdoses occur in a matter of minutes (as opposed to hours for a heroin overdose), relying on emergency services and civilians alone to respond to overdoses is insufficient. Using drugs in a supervised setting would allow for the immediate provision of medical assistance in the event of an overdose.
New York can save lives and continue being at the forefront of effective overdose prevention by choosing smarter public health and evidence-based approaches.
The Legislature should oppose additional scheduling and penalties for fentanyl and fentanyl analogs.
