For decades, America has fought — and lost — the “War on Drugs.” Now, with Colorado lawmakers considering a proposal to make possession of 1 gram of fentanyl a felony, it’s time to acknowledge the past errors of public health policy that locked millions of people behind bars instead of enacting long-term solutions to treating addiction.
Let’s take a look at how we got here, and where we might go from here.
Despite a near-tripled drug arrest rate between 1980 and 2015, and a continued high rate of arrests, there remains zero evidence that increased punitive measures have had any statistically significant effect on lowering drug abuse rates in over 40 years of being “tough on crime.”
More than 80% of the arrests made during these periods were found to be for simple possession. One comprehensive review of available national data showed almost two-thirds of those arrested fell under 1 gram. For context, a single sugar packet weighs about 4 grams.
Fentanyl-specific data is less readily available, but one analysis suggests the average amount at arrest may be higher. Still, the amounts are often within personal use or small-scale distribution, and there remains no meaningful correlation in reduction of drug use with arrests for small-scale possession or distribution — especially as fentanyl overdoses have actually been shown to increase during incarceration. On average, only one in 13 prisoners with substance abuse disorders receive treatment while serving time.
Overall the decades-long focus on law enforcement models that incentivize arrests for small-scale possession and distribution have been wholly ineffective. Takedowns of major drug traffickers have proved the exception — not the rule — resulting in an approach that completely evades the root of the problem and instead criminalizes those who become addicted.
Regarding addiction, it’s important to note that by definition addicts will seek out the addictive behavior regardless of any negative outcomes. This makes targeting low-level offenders — including those who distribute minor amounts to sustain their own addictions — vastly ineffective, both as the negative consequences are rarely a deterrent, and because these people are quickly replaced in drug trafficking rings.
In combination, criminalization at a small-scale level is almost entirely useless in the goal of reducing availability of illicit substances.
Racial, economic disparities
At the same time, racial and economic disparities in drug arrests have proved rampant. Across multiple analyses, Black individuals remain twice as likely to be arrested for drug possession than white individuals despite zero evidence for increased substance use. Low income neighborhoods also tend to be targeted in policing, leading to a disproportionate rate of incarcerations based on tax brackets.
Given the racial and economic disparities, combined with a criminal justice system based on the financial ability to secure counsel, miss work and post bail, the so-called “War on Drugs” has largely proved to be far more of a war on equity than anything else. Continuing this trend will only exacerbate existing inequities.
Rise of opioid abuse
Amid the “War on Drugs,” opioid use and overdoses began to steadily rise in the mid 1990s when OxyContin was wrongly marketed as a non-addictive substance to manage chronic pain. Seeing a subsequent rise in deaths, lawmakers began to crack down on opioid over-prescriptions. However, as rates of prescription opioids began to decrease, many patients who were now being denied scripts — but who were already addicted from prior prescriptions — turned to seek illicit substances to mediate their addiction.
This led to an immediate rise in use of heroin, and later illicit fentanyl as addictions solidified and the substance became more readily available.
In this context, the fentanyl crisis is as much related to the failure of handling the over-prescriptions of legal opioids as it is the “War on Drugs.” Treatment centers for the addictions we created were rarely a cornerstone for reform. Today, what few treatment resources there are remain underfunded and stigmatized, and any attempts to mitigate current addictions must also face the challenges of this decades-long failure.
Illicit access and potency
Access to illicit fentanyl has increased in recent years, but contrary to popular belief not all is delivered through America’s southern border. Much of the illicit supply originates globally, and if not transported through Mexico it can be obtained via the internet — primarily the dark web — using standard shipping methods. This makes tracking, search and seizures far more complex than simply offering more border patrol, but contrary to certain politicized misinformation, fentanyl does not act like anthrax (see the section on “fentanyl panic” below).
Counterintuitively, illicit fentanyl is a primary driver of fatal opioid overdoses in large part due to not being regulated for dosing and purity standards like prescription fentanyl, which is regulated through the Food and Drug Administration. The result has been an illicit drug market that is highly variable in quality and quantity, meaning a user is often unable to determine the exact amount of fentanyl they are consuming — if they even know they are consuming it at all.
This is particularly significant for fentanyl given the extreme potency, with as little as 2 milligrams being fatal depending on a user’s body size, past use and tolerance.
Accidental fentanyl overdoses
The likelihood of unknowingly consuming fentanyl has dramatically increased as the U.S. drug supply has become increasingly tainted. Because fentanyl is a synthetic opioid — not derived from plants — production methods are cheaper. This makes it an inexpensive “filler” for other illicit drugs such as heroin, oxycodone, oxycontin and, in some instances, marijuana to help boost potency without increasing cost.
Unfortunately, while those with established tolerance to opioids may be able to handle the inconsistent or unknown exposure to fentanyl, new users are more susceptible to lower amounts. This has caused a rapid spike in accidental overdoses — especially as drug use increased at large during the pandemic — as new users try to access illicit substances.
Although many people are not even trying to access fentanyl directly, most of the U.S. drug supply is now estimated to contain some level of illicit fentanyl or a fentanyl analog, making nearly any illicit drug purchase is more likely to be a fentanyl or fentanyl-like compound. This means attempts to criminalize any level of fentanyl or its analogs thereby essentially criminalizes all drugs.
Although testing for fentanyl has been an effective option to date, the widespread nature of the drug is rendering testing strips less effective as they are unable to determine the amount of fentanyl in a sample. They can identify only whether or not the drug is present. Also, not all fentanyl analogs are detectable with these strips, which could lead to false negatives, especially as the illicit synthetic market advances.
Due to its high toxicity, pure fentanyl is rare.
Stronger illicit synthetic opioids
Looking ahead, the crisis will not stop with illicit fentanyl. Experts are already identifying the next generation of illicit synthetic opioids. At least one may be 3 times as potent as fentanyl and it is already found in a handful of postmortem studies. As these substances are also likely to be used in compounds, it will almost surely cause death rates to spike even higher without extensive public education on the scale of the tainted drug market.
Although the risk of overdosing with fentanyl is very real, the risk of overdosing via casual or passive contact of fentanyl is fueled extensively by misinformation. Specifically, the belief falsely persists that even being in the same room or space as fentanyl can cause death.
This is untrue, with claims of passive clinical toxicity for fentanyl having been repeatedly debunked.
Still, the dangerous amount of misinformation has led to a form of “fentanyl panic,” notably among law enforcement. In these instances, responders often become extremely concerned of overdosing at any known surrounding or sight of the drug, leading to symptoms of fear and even full-blown panic attacks. This ultimately delays treatment for those who may need it, and threatens the first responder’s health and ability to do their job.
Despite videos that claim to show fentanyl overdoses upon casual or passive contact — and subsequent successful treatment with opioid-reversing drugs such as naloxone — the medical community attributes the positive response to naloxone as responding to general stimulation of the nasal passages after a panic attack and/or relief of assistance, not as an actual reversal of fentanyl overdose. This is sometimes referred to as a nocebo-placebo effect, and the very real anxiety response among law enforcement due to misinformation should be taken seriously via first responder training and mental health providers.
Colorado’s fentanyl bill
So how does Colorado’s bill stack up against the evidence? On the one hand, the bill would provide some funds to distribute opioid reversal drugs — a critical tool of success — alongside some basic harm reduction strategies. These are reasonable, although sorely underfunded and not enough of the focus.
The refelonization of fentanyl at 1 gram, however, is concerning and highly unlikely to yield the desired results. As the vast majority of drug arrests will remain incentivized to target low-level drug possessions or sale among marginalized communities, high-level drug traffickers will remain free to produce and distribute. This approach will not decrease the amount of fentanyl available, therefore not reducing overdoses, and will worsen inequities.
Carve-outs to reduce concerns are ineffective. Criminal convictions, especially felonies, can ruin lives for years from arrest to time served — even if the records are later sealed or overturned.
Overall the bill in its current form is likely to cause more harm than positive impacts and should not be passed as-is.
So now what?
Instead of being “tough on crime” it’s time we get “smart on crime.” While there is no easy answer after decades of failed policy, it’s beyond clear that the answer is not hyper-punitive or politically expedient approaches that criminalize small-scale use, possession or sale.
Evidence does suggest, however, that funding law enforcement to exclusively and forcefully target large-scale drug traffickers is likely to remove larger quantities of illicit substances from communities without criminalizing addictions. Such operations can take law enforcement longer, therefore requiring a complete reworking of how law enforcement is currently incentivized, but are arguably far more effective.
It’s also clear that harm reduction strategies for low- to mid-level offenders must be a prime focus of any bill. These approaches are widely supported by experts and include widespread availability and education for overdose-reversing drugs, enhanced funding for treatment centers and strong preventative efforts that address the underlying reasons that encourage drug-seeking behaviors such as mental health struggles and financial concerns — especially among teens and young adults.
The fentanyl crisis is serious, and we need to set aside political chatter to fix it. Using evidence-driven strategies is the fastest, most effective way to achieve success — but we need bad-faith actors to get out of the way if we’re going to get serious about saving lives.
Trish Zornio is a scientist, lecturer and writer who has worked at some of the nation’s top universities and hospitals. She’s an avid rock climber and was a 2020 candidate for the U.S. Senate in Colorado.
The Colorado Sun is a nonpartisan news organization, and the opinions of columnists and editorial writers do not reflect the opinions of the newsroom. Read our ethics policy for more on The Sun’s opinion policy and submit columns, suggest writers or give feedback at firstname.lastname@example.org.