Criminal Justice System Doubles Down on the War on Drugs

US States have predictably responded to worsening drug supply with the same “tough on crime” drug war approach as decades past.

Part 2 of Safe Supply Saves Lives: a look beyond the deadly war on drugs, a 7-part series.

Colorado’s Democrat-majority legislature passed HB22-1326 this spring, setting the felony line for simple possession of fentanyl at an arbitrary 1 gram.¹ At face value, 1 gram of pure fentanyl is a lot of doses – and you might hear figures that it’s enough to kill whole cities. However, the law explicitly states that the measurement is to be applied to the final mix, not based on laboratory analysis. Fentanyl could easily be cut 1000:1 with inactive ingredients, Tylenol, and other substances in a pill. Just two pills would weigh that felony gram on their own and garner a six-month sentence, while daily fentanyl users can smoke a dozen or more ‘blues’ a day. The motivation behind this law assumes anyone handling more than a single pill must be a dealer, and that they must be deceiving their customers into a deadlier product than advertised.

Gov. Jared Polis signs HB22-1326 on May 25, 2022. (Photo published in Denver Post)

Florida has made the sale of methamphetamine or fentanyl to someone who later dies of an overdose punishable as first-degree felony murder while increasing mandatory minimum sentences to as high as 20 years for the sale of fentanyl.² Mississippi sentenced one such 33-year-old low-level dealer of ‘blues’ to 124 years in prison with no chance of parole after a buyer fatally overdosed – a harsher sentence than intentional homicide perpetrators usually receive in the state.³

These laws and prosecutions draw a hardline distinction between drug users as addiction victims who need treatment and drug dealers as serial killers that deserve to rot. The facts on the ground simply don’t match: supply gets traded and shared casually among people who use drugs, just as a six-pack of beer would be.

Louise Vincent, director of the Urban Survivors Union, told FiveThirtyEight, “When I was struggling in my life and surrounded by drug-using lifestyles, part of survival is selling drugs. […] Not everyone who sells drugs uses drugs, but I think just about everybody that uses drugs has probably sold drugs or at least hooked up a friend.”⁴

In 50% of drug-induced homicide charges analyzed by Health In Justice Action Lab, the direct supplier of the drug was a close friend or family member, not a traditional dealer.⁵ Neither dealers nor friends usually have an intent or interest in the death of someone they’ve sold to or shared drugs with, and low-level dealers are not typically people who have the power to taint or verify the safety of the supply. Drug-induced homicide involves charging a loved one experiencing grief, guilt, and their own Substance Use Disorder after a tragic death where roles could have just as easily been reversed.

Drug-induced homicide prosecutions are a new avenue for racial discrimination, seen to be disproportionately brought against Black dealers with white overdose victims, including the case in Mississippi mentioned above. In just the infancy of research on drug-induced homicide law, the racial disparities in prosecution are evident:

McHenry County, Illinois, a county that has a black population of under 2%, prosecutors have brought cases against four black men from Chicago, which totals 35% of their 11 drug-induced homicide cases. […]
In Minnesota, Hennepin County Attorney Mike Freeman has been outspoken in his support for enforcement of the drug-induced homicide law and has brought 11 charges. […] Though unable to identify all 11 drug-induced homicide cases that Freeman has prosecuted via news outlets, the eight cases that could be identified were all against black defendants. At the very least, then, 72% of Freeman’s prosecutions have been against black people despite a black population of 13% in the county in 2016.
Drug Policy ALliance⁶

People who use drugs will obtain them from someone, and making an example out of low-level dealers has never been effective at reducing the illicit market’s size or harm.⁷ It also sabotages saving lives. Drug homicide prosecutions effectively gut the progress that was made with Good Samaritan laws; someone sharing drugs at the scene of an overdose is protected from being prosecuted for possession if they call 911, but could be charged with homicide if the ambulance doesn’t arrive soon enough. This incentivizes people to flee the scene of an overdose instead of seeking lifesaving care.

To understand how we got to this point of mass death and toxic supply, we have to consider the effect of the US government’s campaign to cut the supply of regulated painkillers under the guise of preventing addiction. This regulatory campaign has coincided with US military operations fighting a global war on drugs by setting fields on fire from Colombia to Afghanistan. The Iron Law of Prohibition, discussed by Beletsky and Davis, explains that a prohibition market encourages trafficking denser – and thus more volatile – products. In a highly policed market, it’s always going to be easier to get away with transporting a gram of fentanyl than a pallet of poppies.

Imposing substantial barriers and costs to the illicit drug supply chain creates direct pressure to minimise volume while maximising profit. More bulky products become more expensive relative to less bulky ones, incentivising increases in potency. Indeed, relative to products with lower alcohol content like beer (Prohibition-era cost increase: over 700%), the price of spirits rose much more slowly (Prohibition-era cost increase: 270%).⁸

Continue reading in The Under-Prescribing Crisis

References

1
Kenney, Andrew. “Here’s the Fentanyl Punishment/Treatment Plan Signed by Polis.” Colorado Public Radio, May 11, 2022. https://www.cpr.org/2022/05/11/heres-whats-in-the-final-fentanyl-bill/.
2
WUSF Public Media. “DeSantis Signs a Bill That Raises Penalties for Fentanyl Trafficking and Other Drug Charges,” May 20, 2022. https://wusfnews.wusf.usf.edu/politics-issues/2022-05-20/desantis-signs-a-bill-that-raises-penalties-for-fentanyl-trafficking-and-other-drug-charges.
3
Ballou, Howard. “Ballou, Howard. “Jackson Man Receives 124 Years after Selling Fentanyl to 24-Year-Old, Resulting in His Death.” WLBT, March 28, 2022. https://www.wlbt.com/2022/03/28/jackson-man-receives-124-years-after-selling-fentanyl-24-year-old-resulting-his-death/.
4
Casteel, Kathryn. “A Crackdown On Drug Dealers Is Also A Crackdown On Drug Users.” FiveThirtyEight (blog), April 5, 2018. https://fivethirtyeight.com/features/a-crackdown-on-drug-dealers-is-also-a-crackdown-on-drug-users/.
5
Northeastern University Center for Health Policy and Law. “Drug Induced Homicide as a Response to Overdose.” Health in Justice Lab. Accessed October 29, 2022. https://www.healthinjustice.org/drug-induced-homicide.
6
“An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane.” Drug Policy Alliance, November 2017. p47. https://drugpolicy.org/sites/default/files/dpa_drug_induced_homicide_report_0.pdf#page=49.
7
The PEW Charitable Trust. “More Imprisonment Does Not Reduce State Drug Problems,” March 8, 2018. http://pew.org/2tszeZl.
8
Beletsky, Leo, and Corey S. Davis. “Today’s Fentanyl Crisis: Prohibition’s Iron Law, Revisited.” International Journal of Drug Policy 46 (August 1, 2017): 156–59. https://doi.org/10.1016/j.drugpo.2017.05.050.