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Rethinking the Drug War around fentanyl and its analogues

In the 1980s and 1990s, both states and the federal government began to crack down on drug offenses at every level. Fighting drug crime was prioritized. Mandatory minimum sentence laws were passed. Prosecutors began stacking sentences to keep people in prison for longer.

Hundreds of thousands of people were rounded up and imprisoned, many simply for possessing illicit drugs. Families were broken apart. Racial disparities began to stack up. It was the rise of mass incarceration in the United States.

The tough-on-crime narrative was that law enforcement and prosecutors were battling large, dangerous drug trafficking networks and thereby keeping Americans safer. The truth is on the ground is quite different. According to a 2018 UC Davis Law Review article, the vast majority of drug prosecutions involve people who possess or sell miniscule amounts.

Now, many policymakers are coming to understand that the so-called solution turned out to be more destructive to communities than the drug addiction problem it was supposed to solve. We need to deal with drug abuse in some new way.

So why are we about to do the same thing with fentanyl and the analogue drugs that are manufactured to mimic its effects? Fentanyl and other opioids are creating a public health crisis across the U.S. Hundreds of thousands of people have died from overdoses. That creates a lot of pressure to act, but what should we do?

Two years ago, the Drug Enforcement Agency issued a temporary order placing all fentanyl analogues on Schedule I of the Controlled Substances Act. That temporary order expires on Feb. 6, and Congress is under pressure to make the scheduling permanent. The hope is that having fentanyl analogues scheduled will allow the DEA to reduce their prevalence.

But evidence suggests that fentanyl has become even more prevalent since the temporary order was issued. Indeed, illicit drugs are more readily available now than they were in 1980, even though we have incarcerated 3000% more people for selling and distribution since that time.

Do fentanyl dealers need to go to prison?

It's tempting to argue that fentanyl dealers are dangerous and need to be stopped, even if that involves prison. But, according to a 2012 survey, 43% of those reporting they had sold drugs also met the criteria for substance use disorder. Moreover, a report from the U.S. Sentencing Commission found that, in 2016, only 16% of people sentenced for trafficking fentanyl actually knew they had been selling fentanyl.

There are many good reasons to believe that imprisoning people who are addicted is counterproductive. It doesn't reduce the availability of drugs and it keeps the addict from receiving effective treatment. Are we about to double down on the War on Drugs?

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