Harsh Fentanyl Laws: Doubling Down on the Wrong Approach

Jeffrey Miron

This article appeared on Substack on June 22, 2023

The New York Times reports that multiple states are responding to the opioid overdose crisis by passing harsh new laws aimed at fentanyl:

In the 2023 legislative session alone, hundreds of fentanyl crime bills were introduced in at least 46 states, according to the National Conference on State Legislatures. Virginia lawmakers codified fentanyl as “a weapon of terrorism.” An Iowa law makes the sale or manufacture of less than five grams of fentanyl — roughly the weight of five paper clips — punishable by up to 10 years in prison. Arkansas and Texas recently joined some 30 states, including Pennsylvania, Colorado and Wyoming, that have a drug‐​induced homicide statute on the books, allowing murder prosecutions even of people who share drugs socially that contain lethal fentanyl doses.

This approach is deeply misguided. Rather than further criminalizing fentanyl, federal and state governments should legalize it, along with all other opioids (and all other illegal drugs).

Most overdoses from illicit drugs result from accidental consumption of excessively potent or adulterated versions, since quality control is difficult in an underground market. That reflects the Iron Law of Prohibition.

In a legal market, fentanyl would be widely available, but in clearly marked dosages, allowing users to consume without risk of overdose. That is what occurs now for other legal but potentially dangerous products, such as alcohol or over‐​the‐​counter medications like acetaminophen (Tylenol). Overdoes occur for legal “drugs,” but they are rare and reflect deliberate excessive consumption.

Governments almost always try to fix society’s problems with more government. When the original problem resulted from too much government, that approach is especially unfortunate.