How to Rethink Drug Dealing and Punishment

As this year winds down, the Drug Enforcement Administration is facing a deadline: The agency’s emergency order classifying fentanyl-like substances, or analogues, as Schedule 1 drugs is set to expire on Feb. 6. Placing analogues in Schedule 1 “makes it easier for federal agents to seize fentanyl-like substances and investigate traffickers of these substances, and for prosecutors to prosecute such traffickers,” according to the Department of Justice.

Now Congress is under pressure to make the DEA order permanent, by passing a bill before year’s end called the Stopping Overdoses of Fentanyl Analogues (SOFA) Act. The DEA, DOJ, and the National Association of Attorneys General are in favor of passing the SOFA Act, and believe it would make a dent in the illicit fentanyl supply by going after traffickers who sell analogues that chemists manufacture to skirt U.S. drug laws. At the state level, New York Governor Andrew Cuomo proposed legislation to schedule new analogues.

But the SOFA Act will not sow less harm by going after those who sell fentanyl. The law will only expand the power of the DEA and further criminalize low-income communities and communities of color without actually reducing deaths. According to a Drug Policy Alliance (DPA) report released today, police, prosecutors, service providers, and the media must question the impulse to get tough on so-called dealers, and call for a new approach that turns away from harsh punishment. 

“As we consider new approaches for people who use, we also need to explore options for addressing drug sales outside the criminal justice system,” said Lindsay LaSalle, managing director of public health law and policy at the Drug Policy Alliance. “We need a radical shift away from supply side interventions and must truly examine both the demand for drugs and the economic and structural reasons why people may be selling drugs.”

For one, the report rightly notes, America’s drug laws fail to distinguish sellers from users. Cracking down on the former invariably leads to crackdowns on the latter. People who use drugs often sell them in small quantities to their friends, leaving little daylight between the role of user and seller. 

And when it comes to alleged traffickers of illicit fentanyl, data from the U.S. Sentencing Commission shows that in 2016, just 16 percent of people sentenced for trafficking fentanyl were aware that that’s what they were selling. This finding contradicts the narrative pushed by the law enforcement community that passing bills like the SOFA Act will result in locking up major traffickers. 

The new report on drug dealers also debunks several other myths and narratives about drug trafficking. For instance, rather than keeping communities safe, locking up sellers may create volatility and unpredictability in drug markets that causes harm to people with addictions. “Law enforcement crackdowns on drug trafficking may be incentivizing the introduction of more potent, riskier drugs such as fentanyl into the drug supply,” authors of the DPA report write. 

Perhaps most notably, the reality is that the vast majority of drug arrests do not capture high-level distributors. A 2018 UC Davis Law Review paper established that “the war on drugs is being waged primarily against those possessing or selling minuscule amounts of drugs,” and these people tend to be Black and Latinx as opposed to white. This racial disparity does not reflect the actual rates of drug selling by race. One section of the DPA report, for instance, notes that “white people are slightly more likely than people of color to report having sold drugs.” And yet, people of color are far more likely to be arrested for both possession and selling. 

“The demonization of people who sell drugs in the context of the overdose crisis is a reiteration of a much older story: a deeply racialized narrative in which illegal drug use is driven by drug sellers (often portrayed as people of color) who push drugs on vulnerable people (often white people) to get them hooked,” the DPA report reads. 

Indeed, the call to enhance penalties for fentanyl analogues is eerily reminiscent of harsh drug laws dating back to the 1980s when Democrats and Republicans agreed to the disastrous 100-to-1 sentencing disparity between crack and powder cocaine that effectively over-incarcerated communities of color. 

So what does going beyond status quo criminalization look like? The report urges police to deprioritize arresting people for only selling and distribution, and treat drug law violations as possession for personal use in all cases that lack evidence of extensive financial gain. “Instead, they [police] should focus on enforcing laws against threats, coercion, exploitation, corruption and conduct that causes physical harm to another person,” the report’s authors write. 

Although progressive prosecutors around the country have vowed to drop low-level drug offenses, and help people who have substance use disorders outside the criminal legal system entirely, they must go further. “Prosecutors should decline to prosecute certain selling- and distribution-related offenses altogether, such as: sharing or giving away drugs for free; subsistence selling; selling by people who are struggling to control their own drug use; drug-induced homicide charges; and conspiracy charges against low-level actors in drug supplying hierarchies,” the report recommends.

Finally, the authors call upon states to repeal drug-induced homicide laws that frequently target loved ones and family members, as opposed to sellers. Drug-induced homicide statutes also conflict with the spirit of 911 Good Samaritan Laws that grant limited immunity to people who call for help during an overdose, which the report supports expanding to “encourage more bystanders to save lives by calling 911 without fear of arrest.”  

Two years ago, the DEA temporarily placed all fentanyl analogues in the Schedule 1 category. Since then, illicit fentanyl has become more prevalent and has resulted in a rise of overdose deaths among people of color in cities like Chicago, Baltimore, and Washington, D.C. who think they are buying heroin. Instead of repeating the same mistakes of the crack era that accelerated mass incarceration, we must take a new approach that helps instead of hurts.  

Zachary Siegel is a freelance journalist in Chicago and a member of the Changing The Narrative collective. His work has appeared in the New York Times Magazine, The Atlantic, Slate, and Wired, among others.