Fentanyl crisis: Should California throw the book at opioid dealers?

How do we solve the fentanyl crisis, which kills more people in California than car accidents or homicides?

That’s the question hanging over the halls of the California Capitol as lawmakers consider more than two dozen bills on the powerful opioid.

The wide-ranging debate is generating unique alliances in the Democratic-controlled Legislature but is also running headfirst into traditional political fault lines that pit proposals to treat addicts against efforts to get tougher on crime.

One solution is gaining widespread bipartisan approval — getting the fentanyl overdose-reversing drug Narcan widely distributed statewide.

A bill authored by Assemblymember Matt Haney, which would supply gas stations, bars and libraries with Narcan, has sailed through several Assembly committees, garnering unanimous support from both Republicans and Democrats. On Friday, Haney, a San Francisco Democrat, introduced another bill that would allow mobile pharmacies to dispense medications that fight opioid addiction. Other bills making their way through the Legislature would require California schools to maintain Narcan onsite.

But bills proposed by Republicans and moderate Democrats seeking to impose stricter penalties on fentanyl dealers have floundered as fractures emerge around how strictly to punish dealers.

One bill authored by Democratic Assemblymember Brian Maienschein of San Diego, which would have lengthened prison sentences for many fentanyl dealers upon conviction, failed its first committee vote last week. Another unsuccessful bill — co-authored by Democratic Sen. Tom Umberg of Orange County and Republican Sen. Rosilicie Ochoa Bogh of Riverside County — would have put convicted fentanyl dealers on notice that they could be charged with manslaughter if someone dies from their supply.

Critics say such measures are a return to the failed War on Drugs policies of the 1980s, which they say did little to curb drug abuse. But parents who have lost children to fentanyl poisoning are furious that more isn’t being done.

“Here we are, California now leads the nation in the number of fentanyl deaths, and we don’t have a single (new) law on the books that holds fentanyl dealers accountable,” said Matt Capelouto, who began advocating for tougher measures against fentanyl dealers after his 20-year-old daughter Alexandra died from fentanyl poisoning in 2019.

Fentanyl was behind a record 5,960 California deaths in 2021, according to data from the California Department of Vital Statistics. That’s more than the 4,250 people who died in auto accidents on California roads and more than double the 2,500 killed in homicides.

Not every measure to increase penalties against fentanyl dealers has failed. A bill authored by Democratic Assembly Member Carlos Villapudua of Stockton, which would add a fine and additional jail time for drug dealers caught with a large supply of fentanyl, passed its first committee vote last week. If the bill passes, big-time fentanyl dealers could spend between 3 and 25 additional years behind bars, depending on how much fentanyl they possessed.

Does imposing stricter penalties against drug dealers work?

A Pew Charitable Trust analysis in 2018 found that increasing drug imprisonment rates had no discernible effect on drug use or drug overdose rates.

That’s a pretty mainstream view among legal experts. Even the U.S. Department of Justice wrote in 2016 that “more severe punishments do not ‘chasten’ individuals convicted of crimes,” arguing instead that sending people to prison could make them more likely to commit crime when they emerge.

And the answer is sometimes more complicated with fentanyl, experts say. People often have no idea they are ingesting fentanyl, which is often laced into other drugs like counterfeit Percocet and Adderall.

So if a kid gave a Percocet pill to a friend, not knowing it contained fentanyl, should they be prosecuted?

Some experts say that targeting big-time fentanyl suppliers should still be a part of a wider solution to the crisis, but only if the penalties don’t scare away fentanyl users from seeking help.

“We know the war on the user is not a constructive societal response,” said Rosalie Liccardo Pacula, a professor in Health Policy, Economics & Law at the University of Southern California. “That doesn’t mean you don’t go after the supply.”

Pacula says that measures like SB 44, which would make it easier for prosecutors to charge fentanyl dealers with manslaughter, could push some of the bigger fentanyl suppliers to change their behavior. By increasing the penalty when a customer dies, dealers may think twice before giving a fentanyl pill to a new user who does not have a high tolerance.

Measures going after the fentanyl supply should be paired with other solutions to protect users from overdosing, experts say, like setting up safe-consumption sites where users can get access to a safe supply under the supervision of medically trained professionals.

But there’s political peril to opening such sites, which are often cast as a “soft-on-crime” solution to the crisis. Gov. Gavin Newsom rejected a bill last August that would have permitted San Francisco, Oakland and Los Angeles to open safe-consumption sites, saying that the bill was overly broad and could actually worsen the crisis.

Political experts say that so long as local politicians generally seem responsive to the fentanyl crisis, they’re probably safe from political blowback. For one thing, fentanyl is a national issue, and voters understand that it impacts both red states and blue ones. Republicans like to portray California as a dystopian fentanyl nightmare, like they did in an attack ad last month warning what Americans will wake up to if President Biden is re-elected. But that’s not going to trigger a local uprising.

Yet Democrats need to avoid appearing too soft on fentanyl dealers, Mulholland said.

“No politician can go around and say — all crime is because they (criminals) had a bad childhood,” he said. “If anyone is caught as a distributor, we Democrats have to look like we want to put them away for life.”