New York drug policy groups have joined a wide range of organizations across the country, including Human Rights Watch and the American Civil Liberties Union, to fight congressional legislation that would amp up criminal penalties for the manufacture, sale and possession of all “fentanyl-related substances.” These local advocates are also recoiling against similar maneuvers happening at the state level.
Despite opposition, the Republican-sponsored HALT Fentanyl Act made it through the House of Representatives on Thursday with some bipartisan support. The bill, which was passed with a vote of 289 to 133 after a heated debate among lawmakers, will now make its way to the Senate. President Joe Biden has already expressed his support for the measure.
The bill would make permanent a rule that has been in effect since 2018, which automatically makes any substance that is chemically similar to fentanyl a Schedule I drug under the federal Controlled Substances Act. That designation comes with mandatory minimum prison sentences for violators of the law. The HALT Fentanyl Act reduces the amount of these drugs someone needs to be caught with to trigger those sentences.
Proponents of the HALT Fentanyl Act argue that it will make it easier to crack down on drug traffickers and reduce the supply of illegally manufactured opioids that have been driving overdose deaths. But critics counter that the law recycles unsuccessful tactics from the war on drugs, and that targeting one type of drug just encourages dealers to move on to something else. Some drug policy researchers have attributed the rise of powerful synthetic opioids in recent years to crackdowns on prescription opioids and then heroin.
“We cannot continue to play this whack-a-mole because we know that what comes next is always going to be more intense and more deadly,” said Jasmine Budnella, director of drug policy at Vocal NY, a local advocacy group that signed a letter urging lawmakers to oppose the HALT Fentanyl Act ahead of the House vote this week. “Supply-side criminalization does not work.”
In New York, Gov. Kathy Hochul has largely focused on promoting addiction treatment and measures to reduce the harms of drug use, rather than policing. But Hochul also quietly reinforced federal efforts to criminalize synthetic opioids in the latest budget by adding new variations of fentanyl to the state’s schedule of controlled substances.
We’re in this moment where, both at the state level and at the federal level, there is this coupling of harm reduction and criminalization as though they are complementary...
“We’re in this moment where, both at the state level and at the federal level, there is this coupling of harm reduction and criminalization as though they are complementary, when actually, they're in complete opposition,” said Toni Smith, the New York director of the Drug Policy Alliance.
Both tactics are now being applied to a newer drug that’s entered the illicit market, known as xylazine. The animal sedative has similar effects as opioids but is in a different class of drugs, meaning it does not respond to naloxone, the nasal spray used to reverse opioid overdoses.
Last week, New York Attorney General Letitia James signed a letter to federal lawmakers urging them to pass the Combating Illicit Xylazine Act, which would classify it as a controlled substance subject to criminal penalties.
Hochul's office did not respond directly when asked whether she supports the attorney general’s move. Rather, spokesperson Aja Worthy-Davis pointed to an initiative Hochul announced this week to boost access to xylazine test strips – a measure that falls in the realm of harm reduction.
The effort “highlights the aggressive measures being taken to address the dangers of this drug, in particular the risks resulting from xylazine being combined with fentanyl,” Worthy-Davis said.
There are some limitations to Hochul’s support for a harm reduction approach to drug use, though. She has so far declined to lend her support to overdose prevention centers where people can use illicit drugs under staff supervision and rejected a proposal to use money from legal settlements with pharmaceutical manufacturers to open more of them.
The two existing centers in New York City have intervened in about 900 potentially fatal overdoses since opening in late 2021, according to the nonprofit that operates them, OnPoint NYC. A bill to expand the centers statewide has progressed in the state Legislature this session, despite not being included in the budget.
OnPoint employees and volunteers help Tammy Hogan's husband, who was overdosing, into the facility to begin mitigation efforts.
The consequences of too much criminalization
Some fentanyl is manufactured by pharmaceutical companies and prescribed by doctors to treat severe pain. But the current wave of overdoses from fentanyl and similar drugs has largely been tied to batches that were made illegally, according to the U.S. Centers for Disease Control and Prevention. Unlike heroin, which requires the cultivation of poppies, fentanyl and other synthetic opioids can be made cheaply in a lab — and a small dose goes a long way.
Despite efforts to bust manufacturers and traffickers, overdose deaths have soared in recent years. Of the approximately 110,000 drug overdose deaths in the U.S. last year, about 75,000 were related to synthetic opioids, according to the latest CDC data. In New York City, there were about 2,500 overdose deaths related to synthetic opioids during that time.
Bridget Brennan, New York City’s special narcotics prosecutor, said in a statement that she has seen certain variations of fentanyl diminish in the drug supply after being criminalized and said she supports the HALT Act.
But there’s evidence that these successes have a limited impact on the drug market overall.
Staff stay nearby while a client uses drugs behind a privacy screen at the OnPoint NYC center in Harlem.
The temporary rules criminalizing all fentanyl-related substances have helped to reduce the number of new fentanyl variations entering the underground drug market because there has been less of an incentive for people to tinker with the original formula, according to Bryce Pardo, a drug policy researcher who works for the UN Office on Drugs and Crime and was part of the federal Commission on Combating Synthetic Opioid Trafficking.
“That has so far been generally positive in the sense that you don't have this churn anymore,” Pardo said.
But he added that, while there may be fewer variations of fentanyl on the market than there were a couple of years ago, fentanyl itself is still prevalent. And other classes of synthetic opioids have started to show up as well – including ones that have not been studied as much.
“We have enough evidence to show that controlling substances to try to squeeze the supply has limited effects on the existence of these drug markets,” said Pardo.
He added that policymakers should focus on efforts to lower demand among drug users – for instance, by increasing access to buprenorphine and methadone, which are opioid replacement medications.
Restrictions on Schedule I drugs also make them harder to research, and critics say the HALT Act sweeps too many substances into the category without a clear understanding of their effects on the human body. The bill does include provisions to allow research in certain cases.
