Punishing safety: Ohio’s deadly mistake
Ohio’s legislature is considering a bill to create harsh new prison terms for fentanyl, a drug that’s playing a key role in an overdose epidemic that killed 3,300 Ohioans in 2015. The well-meaning anti-overdose effort is contained Ohio Senate Bill 1, a disastrously conceived proposal that will likely cause overdoses, not prevent them.
Clemency Report editor Dennis Cauchon, an Ohio resident, testified against the bill today and argued that the bill was both unjust and deadly because it based sentence length on how much fentanyl was diluted — i.e., made safer — rather than the drug itself.
“This is the opposite of harm reduction. It’s a harm production approach,” Cauchon said. “Fentanyl causes overdoses. Dilutants prevent them. The state shouldn’t punish users and dealers efforts to save lives.”
The problems with SB 1 are explained in depth in Cauchon’s written testimony. The fate of the bill has national implications. Congress and other states are considering similar harsh laws focused on punishing the extent to which fentanyl is diluted. The result will be more random, unjust prison sentences without improving public safety.
“This tragedy of overdose deaths shouldn’t be part of a game for prosecutors to manipulate the system for longer sentences. Ten people are dying a day from overdoses in Ohio. We need to focus on keeping people alive. not prosecutors’ prison scorecard,” Cauchon said.
New fentanyl laws: First, do no harm
Fentanyl isn’t like other drugs and can’t be treated the same formulaic way as marijuana, cocaine, heroin and other illicit drugs.
Because of the small size of a therapeutic or lethal dose, fentanyl must be severely diluted to less than 1% of a mixture — and preferably closer to 1/10 of 1% a mixture — to be used without risk of overdose death. Put succinctly, when it comes to fentanyl, dilute, dilute, dilute.
Criminal law should never punish what’s needed for the drug’s safety: dilutants. Such a pro-harm policy is at odds with the harm reduction policies of recent years, such as needle exchange programs and use of naloxone to stop opioid overdoses.
The proposed new fentanyl laws err by trying to use a traditional, imprecise drug sentencing scheme: i.e., weigh everything, then sentence based on the mixture’s weight. When it comes to fentanyl, this down-and-dirty sentencing formula is reckless and irresponsible.Fentanyl demands precision, both medically and legally. The drug itself — and the drug only — must be weighed and used to calculate sentences. A “good enough for government work” estimate can’t work for a drug that functions in near microscopic amounts and is a trivial percentage of the bulk mixture. We do not want dealers avoiding dilution to avoid longer sentences.
Fentanyl’s weight problem
Why is fentanyl different? First, it’s an “adulterant” — DEA’s word, not mine. It’s seldom the drug people seek to buy. Fentanyl is a small, compact potency booster. It’s best known as a heroin adulterant, but it’s also added to cocaine, Ecstasy, counterfeit pills and other illicit drugs. Sellers and buyers never know how much fentanyl is in a drug and are often clueless to whether it’s in the drug at all.
Heroin averages 31% purity at the retail level, reports the Drug Enforcement Administration. So a typical 60 milligram dose of heroin would be roughly 20 mg heroin and 40 mg other stuff, on average.
The estimated lethal dose of heroin is about 75 mg for a first-time or returning male user. Thus, an unexpectedly 100% pure heroin dose would be dangerous but not necessarily fatal.
Death by microgram
By comparison, fentanyl’s lethal dose is estimated at 2 mg for a first-time or returning user. The drug isn’t necessarily more potent than heroin. It actually generates less euphoria but more pain relief and a greater sleepiness. But fentanyl needs extreme dilution, just as two heartburn medicines might provide the same effect but dosage needs to be adjusted.
Fentanyl is unique among common illicit drugs on the market today in that it needs enormous dilution before use. That’s true whether in a hospital operating room (as a general anesthetic) or in the needle in an arm of an addict. Dilution is never more important than when fentanyl is used to create the illusion of “strong” heroin.
Simple math shows why. Imagine a drug user injects heroin that he or she believes is 31% “pure” — in other words, 20 mg of heroin and 40 mg of other stuff. Except this time drug is 16 mg heroin and 4 mg fentanyl (plus 40 mg other stuff). The risk of a fatal overdose is enormous. Even a cautious user would be at risk because the heroin looked the same as always and even cutting the dose in half could still be a fatal dose of 8 mg and the fentanyl to 2 mg.
With fentanyl, death comes in micrograms.
With fentanyl, lives are saved in multiple grams of dilutants.
The dilution of fentanyl should never be punished. To punish what makes the drug safer and essentially ignore the small fraction of the mixture that delivers potential death is harmful beyond the nation’s opiate users.
Remember, millions of drug users — from high school kids to elderly addicts — depend on fentanyl being 99.9% diluted when they take a chance on cocaine, Ecstasy or perhaps a counterfeit ADD pill.
Love the dilutant. Hate the fentanyl. Sentence for the drug only, not the filler desperately needed to prevent a funeral.