The outrage, sadness, and fear of fentanyl’s spread across the cities and small towns of the United States is understandable. No doubt about it. I have suffered through the loss of a family member, multiple clients, and many others to fentanyl. So, again, the need to do something about the fentanyl problem is a powerful one. But too many times, we mistake a powerful and urgent call to do something for a call for impulsive action. This is a mistake.


This past September, Texas passed a new criminal offense for (what has come to be referred to as) “fentanyl murder.” The Texas Statute (Penal Code 19.02(b)(4)) that allows prosecutions for murder for delivering or supplying fentanyl to someone provides that “a person commits [murder] if the person knowingly makes or delivers fentanyl to a person, and the person dies from fentanyl poisoning. Notice what is required: that the person KNOWS the substance is fentanyl. Recall all the news articles, stories, and information you have heard about people unknowingly taking fentanyl, about fentanyl being pressed into pills that look like other drugs, etc. If the State is unable to show that the accused knew the pills he provided contained fentanyl, the accused could not be prosecuted under 19.02(b)(4).


This seems like a significant hurdle for the State to overcome. Consider that, unlike TV shows and movies, the person who generally manufactures (makes) the pills is not the same person who delivers the pills. So while the person who mixes fentanyl in with Tylenol PM or heroin or any other substance knows the pressed pills contain fentanyl, the person who gets the pills three or four or more people down the line to sell (deliver) likely has no idea. Most cases of the manufacturer of fentanyl laced pills are picked up by the federal government, so these cases are seldom prosecuted at the state level. Much more common is the prosecution at the state level of the person who delivers (sells) the pills. The person who likely has no idea. Maybe the State gets lucky and finds some text messages showing the person who sold the pills knew they contained fentanyl; maybe the person who sold the pills containing fentanyl confesses to police they knew the pills contained fentanyl. But likely not. And so prosecution remains for delivery (selling) the pills, not murder.


And it will not stop fentanyl deaths in Texas. Not a chance.


Texas has, for some time, had a statute enhancing the punishment for Manufacture or Delivery of a Controlled Substance where the manufacture or delivery causes serious bodily or death. The Federal Government has, for a long while now, had federal law enhancing punishments for trafficking (selling, namely) a controlled substance causing serious bodily injury of death. There is absolutely no reason why either (or both) of these laws could not fulfill the same function—which do not contain the obvious deficiencies the new Texas law does—as Texas new “fentanyl murder” statute.


Since the new law changes nothing about the penalties a person who sells drugs they know contain fentanyl could face, it’s worth asking why Texas so publicly and with such grandstanding passed the new law. There is no evidence whatsoever that has shown that increasing penalties for drug offenses leads people who are addicted to drugs to stop using drugs. None.


This is exactly why we have never been able to prosecute our way out of the drug crisis in the United States. Until we accept that fact, things will not get better.