A Republican congressman introduced legislation this week that would punish some heroin dealers with the death penalty or life in prison ― a measure critics say would be an ineffective throwback to draconian “tough on crime” policies that defined the failed war on drugs.
Rep. Tom Reed’s (R-N.Y.) bill, the Help Ensure Lives are Protected Act, would allow federal prosecutors to seek capital punishment or life imprisonment for drug dealers linked to an overdose death caused by heroin laced with fentanyl.
Fentanyl, a potent synthetic opioid, is 50 times stronger than heroin and 100 times stronger than morphine, according to the U.S. Centers for Disease Control and Prevention. The powerful painkiller often is mixed with heroin, fueling the opiod epidemic ravaging communities across the nation.
Many policymakers are concerned about opiod devastation, but not everyone agrees tougher enforcement is the answer. Americans have grown weary of “tough on crime” policies, and polls show most believe too many drug offenders are already incarcerated. Support for the death penalty also is declining.
“This bill is a doubling down on the very ineffective, harsh and punitive policies that characterized the early war on drugs and which have widely been proven ineffective at reducing drug use,” said Lindsay LaSalle, senior staff attorney for Drug Policy Alliance.
Reed’s office didn’t respond to a request for comment. The bill is cosponsored by Reps. Ted Yoho (R-Florida), Doug LaMalfa (R-Calif.), Bill Flores (R-Texas) and Steve Chabot (R-Ohio).
The GOP bill joins proposals in a number of states that would allow heroin dealers to be charged with murder in overdose deaths.
One of the best ways to save the life of overdose victims is immediate treatment. Legislation like Reed’s that would toughen punishment would discourage drug users from calling emergency services, which could actually increase the death toll, critics say.
Faced with the threat of a death sentence, the likelihood of a person calling for help in an overdose becomes “virtually zero,” said LaSalle.
The legislation contradicts recent efforts to combat overdoses through policies centered on harm reduction. In 21 states and Washington, D.C., “good Samaritan” laws provide limited immunity for people who call for help for an overdose.
Reed has said his bill targets “the worst of the worst” dealers, not users.
But distinguishing users and sellers can be problematic. “Users are sellers, and sellers are users,” said LaSalle. “It’s very blurry.”
As The Huffington Post’s Jason Cherkis reported in his story on heroin addiction in Kentucky, heroin users will often pool resources to buy drugs together, because it’s cheaper to purchase in bulk. Some end up selling to friends to subsidize their own habits, but they’re hardly big-time drug dealers.
Research shows that increasing the severity of punishment does not reduce drug use or supply.
“The supply chain for controlled substances is not ameliorated because a single seller is incarcerated, whether for drug-induced homicide or otherwise,” reads a recent Drug Policy Alliance report on drug-related homicide laws. “Supply follows demand; not the other way around.”
Several studies have found that locking up individual drug dealers results in a “replacement effect,” in which new recruits fill the absent dealer’s void. One such study found that the main effect of imprisoning drug dealers “is merely to open the market for another seller.”
Fentanyl is intended for use by terminally ill patients seeking pain relief, and its abuse is surging. Fentanyl overdoses have hit the Midwest and East Coast especially hard in recent years. The drug also has spread to the West. Overdose deaths linked to fentanyl surged 80 percent in 2014 from the previous year, according to the CDC.
There’s irony in the fact that Reed’s legislation targets fentanyl. The drug’s popularity is partly due to a crackdown that has made other opioid painkillers and heroin scarcer. Maia Szalavitz breaks down this drug policy phenomena, known as the “iron law of prohibition,” in a recent article for Vice.
Basically, the idea is that because illegal drugs need to be kept hidden, harsher laws will tend to promote the spread of more potent and dangerous drugs, simply because smaller quantities are easier to conceal and smuggle. Alcohol prohibition, for example,favored whisky over beer. The rise of illegally produced fentanyl and its derivatives—overdoses of which increased 79 percent between 2013 and 2014 alone—seems an apt illustration of this principle.
The rise of even more potent synthetic opioids, like an elephant tranquilizer responsible for a string of overdose deaths earlier this month, shows how futile efforts like Reed’s may be.
David Menschel, a criminal defense lawyer and activist, said Reed’s proposal would only “magnify the suffering of people struggling with heroin addiction.” He added that if the bill became law, it would be struck down by the U.S. Supreme Court “in a heartbeat.”
Rob Smith, senior research fellow and director of Harvard Law’s Fair Punishment Project, said the legislation is out of synch with what most Americans want.
“While the rest of America is trying to distance itself as fast as possible from the disastrous and wasteful war on drugs, Reed wants to tie America to the mast of that sinking ship,” Smith said.