Proposal would impose a life sentence for fentanyl distribution

The bill, endorsed Wednesday by the Louisiana District Attorneys Association, would impose life in prison without the possibility of parole on anyone convicted of distributing fentanyl or a “mixture or substance containing a detectable amount of fentanyl” over 28 grams. 

A measure that would add a conviction for fentanyl distribution to the short list of crimes punishable by a mandatory life sentence without the possibility of parole is being backed by Louisiana prosecutors as a response to the opioid epidemic in the state, while advocates warn that the harsh sentence will throw people away for life while doing little to stem the tide of overdose deaths.

The bill, endorsed Wednesday by the Louisiana District Attorneys Association, would impose life in prison without the possibility of parole on anyone convicted of distributing fentanyl or a “mixture or substance containing a detectable amount of fentanyl” over 28 grams. 

If passed, it would make fentanyl distribution the only stand alone non-violent crime in the state that would mandate a life without parole sentence, and would likely be the harshest penalty for fentanyl distribution in the country.

Brought by Rep. John Stefanski, Republican of Crowley, who is also running for Attorney General in the upcoming November election, the bill comes amid a steep rise in overdose deaths in the state in recent years, which has been driven by the synthetic opioid that is 50 times stronger than heroin.  

But, Maritza Perez Medina with the Drug Policy Alliance, a national organization advocating for decriminalization and regulation of drugs, said that severe measures could actually make the problem worse. The organization instead advocates for a public health approach to the epidemic, including expanded access to the overdose reversal drug Naloxone, widen good-samaritan laws, and authorize “supervised consumption sites.” 

In 2021, according to the Louisiana department of Health, there were more than 1,000 fentanyl related overdose deaths — up more than 2,000 percent from 2014. In New Orleans, all drug-related deaths in 2021 were five times higher than in 2015, and 94 percent involved fentanyl, according to a press release from coroner Dwight McKenna.

Stefanski’s bill is one of several that seek to increase penalties related to fentanyl distribution and production — though the only one that mandates a life sentence without parole. He did not respond to an interview request from The Lens, but told the Daily Advertiser earlier this year that he acknowledged that the sentence is extreme but hoped it would have a “chilling effect” on fentanyl dealers.

Currently, the penalty is five to forty years in prison for distribution of any amount of fentanyl. 

But some advocates and experts warn that harsh sentences will do little to deter distribution, could result in an even more dangerous drug supply, and that in reality there is often no distinction between drug dealers the lawmaker hopes to punish and the users he hopes to protect. 

In addition, they say the law could end up sending people away for life who may not have any knowledge that they are even in possession of fentanyl.  Fentanyl is frequently used to lace other drugs, including heroin, cocaine, and counterfeit prescriptions. If someone has more than 28 grams of any of those, and there is detectable amount of fentanyl, they would be subject to the mandatory life without parole sentence upon conviction.

It appears that there is an appetite for increased sentences in general at the statehouse when it comes to fentanyl. A bill increasing the penalties for the “creation or operation of a clandestine laboratory for the unlawful manufacture” of fentanyl passed out of a state Senate committee on Tuesday with no opposition from lawmakers. 

And while it is still unclear how Stefanski’s life without parole bill will fare, the support of the DA’s association will likely increase the odds of it passing, as legislators frequently look to the organization and their local district attorneys when making decisions on criminal justice issues. 

Loren Lampert, the head of the association, confirmed to The Lens on Wednesday evening that the DAs had decided to support the measure. He declined to comment further. 

A spokesperson for Gov. John Bel Edwards didn’t respond to emails regarding the Governor’s position on the measure, nor did one for Orleans Parish District Attorney Jason Williams. 

More Harm Than Good?

Perez Medina said measure’s like the one Stefanski is proposing are unlikely to impact larger systems of drug manufacturing and distribution or decrease overdose deaths.

“The people that get impacted are people who use drugs themselves, people on the lowest levels of the drug distribution chain,” Perez Medina said. “People who are possessing or selling, but also use. We’re not really disrupting the kingpins or the manufacturers.” 

Cracking down on fentanyl could also lead to an even more lethal drug supply as manufacturers adapt to avoid detection and longer sentences, she said. 

“Criminalization is what led to the dangerous drug supply that we have today in the first place,” she said. “These drug chemists are really smart, and they’ll come up with more potent substances to replace whatever is being criminalized. They’ll come up with ways to make it less detectable. And that’s what we’ve been seeing with these substances — taking smaller amounts made much cheaper to give people that same high that they’re expecting.” 

She suggested that is already what is occurring with new drugs like xylazine, also known as “tranq,” a horse tranquilizer that has been mixed in with fentanyl to extend its life, and makes it even more dangerous. 

Officials in both Orleans and Jefferson Parish have confirmed that xylazine has entered into the local drug supply.  (Another bill at the legislature this session would add xylazine to the state’s list of controlled dangerous substances.)

Perez Medina also raised concerns that the harsher penalties would deter people from calling for help when they are around someone who is overdosing. While Louisiana’s so-called “good Samaritan” law, passed in 2014, shields someone from being prosecuted for possession of drugs, it does not protect against prosecution for distribution or possession with intent to distribute. 

‘If the past is anything to go by’

Both advocates for the measure as well as its opponents seem to agree that it represents a throwback to a more punitive era of drug enforcement that the state has mostly abandoned.  

Stefanski has cited the mandatory life without parole sentences for heroin that Louisiana passed in the 1970’s as inspiration for his measure. “It’s extreme,” he said in a statement to the Advertiser, “but it’s my hope that this will run it [fentanyl] out of the state in the same way the same penalty for heroin did.” 

But it’s unclear to what extent the life without parole heroin distribution sentence really impacted heroin use or trafficking in Louisiana. A 2001 “drug threat assessment” issued by the now defunct National Drug Intelligence Center, which was part of the United States Department of Justice, noted that while heroin use was minimal throughout most of the state, New Orleans had actually become a hotspot for the drug. 

The report noted that heroin use was on the rise in both the city and surrounding suburbs and that “many law enforcement authorities fear New Orleans is emerging as a regional heroin distribution city.” 

“According to the New Orleans Field Office of the DEA, New Orleans is the only major city on the Gulf Coast where heroin is readily available,”  the report read. “Individuals come from as far as Pensacola, Florida, to obtain heroin.”

Meanwhile, many people faced life sentences for distributing relatively small amounts of the drug, according to news articles from the period. 

In 1978, a man got life without parole for selling 4 packets of heroin to an undercover officer in New Orleans for $15 a piece. In 1988, a 39-year-old woman was also sentenced to life without parole for selling 36 packets of heroin to an undercover officer after a trial that lasted less than two hours. The woman said she was a heroin addict herself. The following year, another man faced a life sentence for allegedly possessing a matchbox full of the drug. A jury opted to convict him of attempted possession instead.

In 2001, after the NDIC report was issued, the legislature revised the law to reduce the sentence for heroin to between five and forty years in prison.

Rep. Debbie Villio, Republican of Kenner, who is sponsoring another bill that increases penalties for fentanyl distribution and sits on the House Administration of Criminal Justice Committee, said that even if the harsher sentences don’t disrupt the larger distribution network, getting individual dealers off the street for longer is sufficient. 

“When people talk about deterrence, the one thing I’d note is that when a person is incarcerated they are deterred from dealing fentanyl on our streets,” Villio said. “Fentanyl is killing women, men, and children, daily in Louisiana and across the country. These manufacturers and distributors need to be stopped, and as long as they are in jail serving an increased penalty I can tell you they’re not on our streets dealing. I’m comfortable with my definition of deterrence.”

Villio said that she was not opposed to Stefanski’s LWOP bill, and was willing to amend her own based on the recommendations of the committee and law enforcement organizations. 

Today, Louisiana already has more people serving life without parole sentences than any other state in the country, according to Marcus Kondkar, a sociology professor at Loyola University who studies sentencing.

“We really lead the charge in this,” he said.

Kondkar, who co-produced The Visiting Room Project, a series of filmed interviews with people serving life without parole sentences at Louisiana State Penitentiary at Angola, also said that by the time most people get to a certain age they have moved on from any criminality they may have displayed in their younger years. 

While acknowledging that opioid addiction is a “massive social problem,” Kondkar said he doubted the efficacy of maximum sentences. 

“If the past is anything to go by, it’s highly unlikely to be solved by just ratcheting up penalties,” he said. “It’s just another mindless approach to this problem.”

Clarification: This article previously listed marijuana as a substance that fentanyl is frequently used to lace. While some law enforcement agencies claim to have discovered fentanyl-laced marijuana, many public health experts have warned that those claims are often unsupported by evidence.

Nick Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...