Hochul Quietly Bets on Police to Battle Fentanyl

The governor buried policies in her budget proposal that would give police and prosecutors more leverage over people with opioid addictions.

Spencer Norris   ·   March 30, 2023
Governor Kathy Hochul discusses her criminal justice policy proposals in Albany on March 22, 2023. | Darren McGee / Office of Governor Kathy Hochul

ONE POWERFUL SYNTHETIC opioid has evolved into the archvillain of the national overdose crisis.

“Fentanyl has its hands wrapped around peoples’ necks, suffocating them. They can’t escape,” Governor Kathy Hochul said during her February 1 budget address. The drug is now associated with most overdose deaths in the state. In 2021, it was detected in 80 percent of fatal cases in New York City.

Hochul is riding enormous political momentum to solve the problem. For months, she has publicly showcased an anti-opioid campaign with a soft approach: harm reduction, drug treatment, alternatives to incarceration. She has been far quieter about a strategy she is pushing alongside those investments, that relies heavily on an emboldened criminal justice system.

Nestled in her multi-thousand page budget proposal is a measure to permanently add numerous fentanyl analogs — slightly chemically different substances that have been expanding rapidly in the drug supply, and that can be far more potent — to the state’s schedules of controlled substances. If enacted, the change would allow law enforcement to go after people in possession of the synthetic opioid’s lethal cousins.

Another change would make it a crime to possess with intent to sell any drug masquerading as something else. Though the proposal may seem like common sense, drug policy experts warn that with the ubiquity of laced drugs, it could have far-reaching consequences and drive up incarceration rates.

New York Focus could not find mention of either proposal in the governor's published statements and press releases, and her office did not respond to questions about her recommendations.

Hochul’s budget combines additional policing with numerous progressive measures, and it prioritizes spending mainly on the latter: roughly $200 million for drug testing and harm reduction, fueled by a tax on opioid companies’ sales, compared to just $9 million for policing fentanyl.

The raw dollar amounts don’t account for how Hochul wants to change the rules of the game. Her recommended policies would allow police to go after more people on more charges, even though studies have found such methods ineffective at preventing overdoses or reducing the drug supply.

What happens next will depend on what she can get the legislature to accept. In their own budget counter-proposals, the Senate and Assembly both earmarked funds to bolster Hochul’s local crackdowns on fentanyl suppliers, but neither took up her proposal to schedule fentanyl analogs. They still have a few days to settle the differences: The final budget is due April 1, though negotiations look likely to blow past the deadline.

This isn’t the first time New York’s chief executive has tried to criminalize analogs. In 2018, then-Governor Andrew Cuomo announced a proposed budget amendment to add 11 fentanyl analogs to the state’s schedules of controlled substances, plus give the health commissioner the power to schedule anything already listed by the federal government. A pared down list of analogs pulled from the federal schedules were eventually added.

Hochul’s policy would expand on Cuomo’s approach by adding numerous analogs to the state’s schedules, plus introducing new laws and giving a small boost to fentanyl policing.

For Hochul, “the law enforcement piece is new and weird,” said Tracie Gardner, a former health official in Governor Andrew Cuomo’s administration who helped run the heroin task force Hochul headed when she was lieutenant governor.

While that task force ultimately recommended scheduling fentanyl, the group “had round tables all over the state, and people made it really clear that the efforts to try to address this health problem with a criminal justice response were not working,” said Gardner, now a senior vice president of policy advocacy at the Legal Action Center.

SCHEDULING FENTANYL ANALOGS is just one part of Hochul’s proposed expansion of the drug policing dragnet. She also put forth a plan to broaden the definition of “imitation controlled substances” and to create new penalties — four felonies and one misdemeanor — for selling them or possessing them with intent to sell.

Currently, an “imitation controlled substance” is any substance that isn’t controlled, but gets sold like it is — for example, baby powder sold as cocaine. Hochul’s proposal would change the definition to include any controlled substance that is held out as something else.

The plan has triggered a massive backlash from drug policy advocates, who argue that prosecutors could use it to interpret any blend of heroin and fentanyl as an imitation controlled substance and ramp up charges. A 2021 US Sentencing Commission report found that nearly a third of all offenders in federal cases had sold fentanyl or an analog as something else, almost always heroin.

And the state’s legal definition of selling something is so broad, it includes giving it away without compensation. If someone shared their supply of a laced substance with someone else for free, it would fall under Hochul’s expanded definition and open them up to felony charges.

This month, 58 organizations, including heavy-hitters like the Legal Action Center, signed a petition objecting to the new provisions for both fentanyl analogs and imitation controlled substances.

“New York led the nation in adopting the horrific Rockefeller drug laws which ushered in mass incarceration. We can’t go backward to this dark era,” the petition read. “Increased criminalization will not address what is needed to turn the tide on the crisis, in fact, it will make it worse.”

The 1973 Rockefeller policies created 15-year mandatory minimum prison sentences for drug felonies, swelling the state’s prison population before the legislature rolled them back in 2009.

Despite the reforms, New York’s sentencing scheme still carries minimums for numerous drug-related crimes. Hochul’s proposed imitation drug felonies would carry one- to 15-year minimums, depending on severity, for first-time offenders.

Megan Marcelin, a senior policy director for New York at the Legal Action Center, cautioned that New Yorkers have been down this road before.

“Whenever the response to an overdose crisis is law enforcement, is prosecution, is sentencing people to onerous sentences for supplying drugs — it disproportionately impacts Black and working class communities,” Marcelin said.

A 2018 US Sentencing Commission report found that among 51 cases involving fentanyl traffickers — and unlike with other drugs the report covered — the overwhelming majority of offenders were Black or Hispanic. Just eight of the 51 were high-level suppliers or leaders; nearly half were low-level dealers and mules.

New York Focus reached out to the police departments in Albany and New York City, the Police Benevolent Association of the City of New York, the state Attorney General’s Office, and the Division of Criminal Justice Services for their thoughts on Hochul’s policy. All either declined to comment or didn’t reply.

“We’ll send resources to localities that are working to shut down fentanyl suppliers,” Hochul said during her State of the State address in January.

To Jasmine Budnella, director of drug policy at VOCAL-NY, the rhetoric around breaking up supply chains is a repackaging of the same policies that have historically targeted drug users.

“The way that Governor Hochul was framing it was like we would go after the Pablo Escobars of the world. But in reality, we know who will be really, really harmed,” Budnella said.

RESEARCHERS HAVE FOUND little evidence that increased policing of fentanyl and its analogs will save lives.

In fact, the only nationwide decrease in opioid overdose deaths since 1999 was the result not of policing, but of international regulatory changes, according to the leading research.

A study of over a million overdose deaths dating back to 1973 found that overdoses spiked in 2017 alongside a rise in the number of seizures of carfentanil, a fentanyl analog many times more powerful than its more widely known progenitor. A rapid drop in both deaths and seizures followed in 2018. The states with the most seizures of carfentanil in 2017 noted some of the largest declines in overdose rates the following year.

Hawre Jalal, the lead author on the article, told New York Focus that it was most likely regulatory pressure on China, not local policing, that resulted in the downturn in cases and carfentanil seizures.

According to an intelligence report from the Drug Enforcement Administration, China was the primary source of fentanyl-related substances flowing into the United States before the Chinese government began scheduling and controlling the drug’s precursors. The subsequent disappearance of carfentanil from the black market coincided with the first national drop in overdose deaths in decades.

“That was the main conclusion of the paper, that the rise and the fall of overdose deaths that we observe were due to a sharp increase and then decline of carfentanil seizures,” Jalal said. “And not really due to any local policies; it was most likely due to China’s regulation of carfentanil.”

While crackdowns can temporarily reduce a drug’s availability on the market, the benefits from stepped-up policing have been found short-lived, since they don’t address the reasons why people want the drug in the first place. What researchers have dubbed the “Iron Law of Prohibition” holds that as policing and enforcement crack down on supply, more potent alternatives will emerge.

By that account, the rise of harder fentanyl analogs may be a result of efforts to police fentanyl in the first place.

Harsher policing can have a negative downstream effect on the people suffering from addiction. A study by researchers at Penn State, the University of Wisconsin-Madison, and the Madison Police Department found that police interactions with opioid users did not prevent recidivism or incarceration – and that users who encountered police were more likely to die from an overdose later on.

“We have the evidence to say this doesn’t stop people from dying from overdoses. It prevents people from seeking out treatment, or places where there can be safe drug use sites,” Marcelin said. “We know that, and so I found that horrifying, and also a signal of what’s to come with this sort of move towards a law and order approach to fentanyl.”

Spencer Norris is an investigative reporter covering homelessness for New York Focus and ProPublica’s Local Reporting Network. He has exposed deficiencies in opioid treatment in New York’s jails and prisons, as well as a treatment desert spanning most of upstate. Spencer previously worked… more
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