Harsher penalties for fentanyl will not save lives

In 2021, there were 6,843 opioid related overdose deaths in California. 5,722 of these deaths were related to fentanyl. The deadly epidemic of fentanyl is gripping our communities, and it has left our leaders desperate to find answers. But will our leaders learn from history as they work to implement solutions?

In the 1980s crack cocaine became popular in the United States because of its affordability, immediate euphoric effect and its profitability. The epidemic was particularly devastating for inner city African American communities as drug-related crimes, addiction and related deaths soared. U.S. President Ronald Reagan responded by expanding the “War on Drugs,” passing federal anti-drug laws, increasing federal anti-drug funding, initiating the expansion of prison and police programs and more. State lawmakers followed suit, and spending on police, prosecutors, jails and prisons ballooned as sentences for drug offenses soared across the country.

The War on Drugs may have been well intentioned, but the fatally flawed concept was grounded in misunderstood deterrence theory; the false promise that harsher penalties would deter or discourage the sale and use of drugs. Enforcing the barrage of new drug laws focused on small-time dealers, most of whom were poor young black males, led the prison population to double due to the arrest of dealers and their addicted customers.  By 1995, one in every three African American males aged 20 to 29 was either incarcerated or on probation.

Today we know that laws and policies designed to deter crime by focusing mainly on increasing the severity of punishment are ineffective, in part because offenders know little about the sanctions for specific crimes. And after decades of arresting and locking up dealers, drug prices have plummeted further increasing accessibility.  The question is whether we will identify new solutions based on these lessons from recent history.

Last year, the Orange County and Riverside District Attorneys announced a policy “to get tough on fentanyl dealers” by pledging to charge them with murder if they sold fentanyl to people who had fatal overdoses. Many law enforcement officials applauded such moves, arguing that severe consequences will deter sales and curb the crisis.

Sound familiar? It appears these prosecutors are ignoring the data and repeating the same failed approach of the 80’s and 90’s. Increasing penalties and imposing even more draconian sentences has never been shown to decrease crime.

To be clear, drug dealers who know their selling substances laced with fentanyl that can kill people should be held accountable. However, under existing laws, the United States already sends people to prison for longer periods than almost any other developed nation. Committing more of our resources to longer sentences for low-level dealers does not reduce the supply or demand for drugs. What it does is recommit our criminal justice system to an endless game of whack-a-mole that siphones resources and attention away from real solutions.

Those real solutions require us to implement strategies that effectively target the supply and demand side of America’s drug problem.

On the supply side, we must apprehend major drug dealers and hold them accountable in a manner that is commensurate with the impact they’ve had on our communities.  On the demand side, we must provide adequate programming and treatment to help those struggling with addiction.

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The CDC also outlines numerous evidence-based strategies for preventing drug overdoses including medication-assisted treatment, Naloxone distribution, and public education campaigns. Places such as Vancouver and Portugal have become poster children for harm reduction, and they saved lives in the process. In fact, while the EU has 17.3 overdose deaths for each million citizens, Portugal has just three.

With drug overdoses continuing to plague our communities, we have a serious choice to make about what path we pursue. Do we double down on the failed war on drugs, or do we learn from our mistakes and champion evidence-based initiatives that will save lives? One of these strategies serves the interests of politicians, while the other serves the interests of the public.

The choice is clear.

Cristine DeBerry is founder and executive Director of the Prosecutors Alliance of California.

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