Harsh new fentanyl laws ignite debate over how to combat the overdose crisis

Three teenage girls were found slumped in a car in the parking lot of a rural Tennessee high school last month, hours before graduation ceremonies. Two were dead from fentanyl overdoses. The third, a 17-year-old, was rushed to the hospital in critical condition. Two days later, she was charged with the girls’ murders.

Prosecutors cited a Tennessee law that permits homicide charges to be brought against someone who gives fentanyl to a person who dies from it.

“We have this law to punish drug dealers who poison and kill people,” said Mark E. Davidson, the district attorney who is prosecuting the case in Fayette County, Tennessee. “And we also want it to be a deterrent to those who continue to do these drugs.”

Dozens of states, devastated by unrelenting overdose deaths, have been enacting similar legislation and other laws to severely ratchet up penalties for a drug that can kill with just a few milligrams.

In the 2023 legislative session alone, hundreds of fentanyl crime bills were introduced in at least 46 states, according to the National Conference on State Legislatures. Virginia lawmakers codified fentanyl as “a weapon of terrorism.” An Iowa law makes the sale or manufacture of less than 5 grams of fentanyl — roughly the weight of five paper clips — punishable by up to 10 years in prison. Arkansas and Texas recently joined some 30 states, including Pennsylvania, Colorado and Wyoming, that have a drug-induced homicide statute on the books, allowing murder prosecutions even of people who share drugs socially that contain lethal fentanyl doses.

But to many public health experts, the tough new fentanyl laws seem like a replay of the war-on-drugs sentencing era of the 1980s and ’90s that responded to crack and powder cocaine. They worry the result will be similar: The incarcerated will be mostly low-level dealers, particularly people of color, who may be selling to support their addictions.

In a deeply divided country, many of the fentanyl crime laws are notable for attracting bipartisan support. This year, the Democratic-controlled legislatures in Nevada and New Jersey advanced strict fentanyl bills. Oregon lawmakers, who in 2021 passed the country’s most lenient drug possession law, have been weighing a tough new one.

This may be partly because many laws have been publicly championed by families who have lost children to fentanyl. Mourners often stand alongside governors at bill-signing ceremonies.

Davidson, who is prosecuting the Fayette County teenage murder case, has seen up close the anxiety and desperation of families as he makes the rounds to rotary clubs and churches to educate the community about fentanyl. After these sessions, frightened parents keep demanding: What are you doing about it?

Until about two years ago, drug fatalities were unheard-of in Fayette County, a rural bedroom community outside Memphis, Tennessee, with about 40,000 people. But since May 2021, the county sheriff’s department has recorded 212 overdoses, including 27 fatalities, overwhelmingly because of fentanyl.

So-called drug-induced homicide laws, like the one Davidson relied on, usually do not require prosecutors to prove that the person who provided the drug intended to kill the victim; the law presumes that if someone knowingly distributed fentanyl, death was foreseeable. Many prosecutors believe such laws are essential, given the crisis in their communities.

A more common type of fentanyl crime law focuses on the kind of drug and weight at the time of seizure. Federal laws and, increasingly, state ones are attaching higher mandatory minimum sentences for ever-smaller amounts.

Mandatory minimums are seen as the most restrictive form of sentencing because they generally prevent judges from exercising discretion. At least six states established them in their fentanyl laws this year, according to the Addiction and Public Policy Initiative at the Georgetown University Law Center.

Ultimately, many drug crime experts say, these laws do not meaningfully disrupt the vast sources of the drug supplies: synthetic drugs frequently ordered on the internet and processed in Mexico, often with chemicals from China and India.

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