Erasing progress
Bill hurts addicts, not dealers
Nearing a decade ago, on a cold 2014 morning, a young man lay motionless on his living room couch. He wasn’t breathing. His friends were frozen with fear. Joshua Ashley-Pauley died that day when bystanders were too afraid to call 911 during his overdose. A year later, a law with his namesake made its way through the Capitol, and protected Arkansans who called the authorities during an overdose. It was lifesaving.
Tragically, the state Legislature threatens to undo that progress. The “Fentanyl Enforcement and Accountability Act of 2023” will drag the state backwards, harming the addicts it claims to protect and defeating its intended purpose. It’s a new bill, introduced in February by state Sen. Ben Gilmore and Rep. Jimmy Gazaway, and endorsed by Gov. Sarah Sanders a day later.
This bill may be new, but its philosophy is anything but. It is just a continuation of the 1980s war on drugs, one that has already been lost in Arkansas. The bill’s primary focus is to create a new series of crimes, termed Death by Delivery. In doing so, it joins 23 other states that use drug-induced homicide laws to turn overdose cases into homicides, and “dealers” into murderers.
One of the first problems with this bill is that dealers aren’t targeted. Drug-induced homicide (DIH) laws far too often lead to the arrests of not dealers, but addicts themselves. For instance, an analysis of DIH laws in rural Illinois saw that the person charged is “typically the last person who was with the person who overdosed,” not some imagined dealer. The same effect was shown in a Utah Law Review study that found half of those charged with drug-induced homicide were “co-using friends, family, or romantic partners of the deceased.”
Tough-on-crime laws like these attempt to separate victims and perpetrators, but evidence shows that methodology rarely works and the true perpetrators go free. The Fentanyl Enforcement and Accountability Act hurts those it paints as victims and fails to keep real profiteers accountable.
The bill moreover works against itself yet another way. It will increase overdoses, putting those it claims to protect in prisons and cemeteries alike. The act will do this by tearing apart the instrumental Joshua Ashley-Pauley Act piece by piece.
The bill at hand claims that it will protect the Joshua Ashley-Pauley Act, stating it will “not restrict or interfere with the rights and immunities provided” in that act, but that is a promise of little substance. The bill fails to exempt those who call 911 from its
Death by Delivery charges. And because those at the scene are most likely to be charged, they have the most reason to be afraid of prosecution.
The Joshua Ashley-Pauley Act put bystanders’ minds at ease, but historically, DIH laws have only made them more afraid of prosecution. Throughout the nation, bystanders are already reluctant to call the authorities in an overdose. The bill’s hidden reassurances are unlikely to reach addicts and bystanders because they are unlikely to read it. In our world, the punishment is always more publicized than the reassurance.
And that get-tough publicity has consequences. In fact, a 2020 study found “an increase in media coverage of DIH prosecutions is associated with an approximately 7.7 percent increase in overdose deaths.” This is because it directly interferes with similar good Samaritan laws. Few will call for help if they are threatened with up to life in prison; they just won’t risk it.
The facts bear these fears out. A recent Drug Policy Alliance study found that across five states with dramatic increases in DIH prosecutions, overdoses increased from 7-20 percent in a single year. Almost a decade after the Joshua Ashley-Pauley Act, this bill will kill Arkansans just like him, and Arkansas will be left with blood on its hands.
This bill is not entirely misguided. It excludes fentanyl test strips from drug paraphernalia definitions, allowing users to protect themselves legally and avoid a felony. But this goal could be accomplished another way, as Senate Bill 40 already planned to do.
Once again, Arkansas can only hope that the authors of the Fentanyl Enforcement and Accountability Act were well-intentioned. They have reason to believe so; fentanyl is a crisis in need of a solution. However, this bill will do nothing to solve it. Instead, it will hold no one accountable and leave Arkansans dead by undermining the Joshua Ashley-Pauley Act.
The Arkansas LEARNS Act has overshadowed this bill, but it seems there is more to learn within the halls of the Capitol. Our legislators need to learn not only not to try what does not and has not worked, but to stop tearing away at the few things that do.