Penalties for Fentanyl-Related Crimes and Deaths

Many lawmakers and prosecutors are pushing for stiffer penalties for fentanyl-related crimes to combat the overdose crisis.

By , Attorney · UC Law San Francisco
Updated 10/27/2023

Fentanyl is a potent opioid—50 times stronger than heroin and 100 times stronger than morphine, according to the Centers for Disease Control and Prevention (CDC).

Pharmaceutical fentanyl is made in a lab and prescribed by doctors to treat pain. Illegally manufactured fentanyl (IMF) is sold on the street or mixed with other drugs, like heroin, to make them cheaper and more powerful. IMF is fueling an overdose crisis. The National Safety Council reports that fentanyl accounted for 67,325 preventable deaths in the U.S. in 2021, a 26% increase from 2020.

The fentanyl crisis raises public health and public safety concerns. Here's an overview of federal and state penalties associated with fentanyl and a look at how prosecutors are using homicide charges to punish people who contribute to fatal overdoses.

What Is Fentanyl?

Fentanyl is a type of opioid that is approved by the Food and Drug Administration for pain relief. Some opioids, like morphine and codeine, are made from the opium plant. Others, like fentanyl and carfentanil—called "synthetic opioids"—are made in a lab.

What Does Fentanyl Look Like?

Prescribed fentanyl is typically given as a shot, skin patch, or lozenge that is sucked on like a lollipop or cough drop.

Illegally manufactured fentanyl (IMF) comes in many forms. Powdered fentanyl is typically mixed with other street drugs or pressed into fake pills that look like legitimate medications or brightly colored candy. Liquid fentanyl can be found in nasal sprays, eye drops, or dropped onto paper.

How Does Fentanyl Make You Feel?

According to the Drug Enforcement Administration (DEA), the effects of fentanyl include relaxation, euphoria, pain relief, sedation, confusion, drowsiness, nausea, vomiting, constricted pupils, and depressed breathing.

Signs of a potentially fatal fentanyl overdose include:

  • falling asleep or losing consciousness
  • cold and clammy skin
  • a bluish discoloration of the skin (especially in lips and nails), and
  • respiratory failure.

If you suspect someone has overdosed on fentanyl, call 911 right away and administer naloxone (Narcan), an opioid-blocking medication, if you have some.

Is Fentanyl Illegal?

Fentanyl is legally available only by a valid prescription. Doctors prescribe fentanyl to treat severe pain, often in advanced cancer patients. It's also used to cause drowsiness before medical procedures such as surgeries and colonoscopies. Illegally manufactured fentanyl, as the name suggests, is never legal. Possession or sale of pharmaceutical fentanyl without a prescription is also a crime.

Is Fentanyl a Schedule I or Schedule II Drug?

The federal Controlled Substances Act divides drugs into five schedules based on the substance's medical use, potential for abuse, safety, and risk of addiction. Pharmaceutical fentanyl is a Schedule II drug—a substance with a currently accepted medical use but a high potential for abuse. Illegally manufactured fentanyl-related substances are temporarily classified as Schedule I drugs—substances with no accepted medical use and high potential for abuse and addiction.

Based on these classifications, federal law highly regulates fentanyl and imposes harsh criminal penalties for unauthorized possession, manufacturing, distribution, and sale of fentanyl and fentanyl-related substances. States are also imposing increasingly harsh penalties for fentanyl-related offenses.

Federal Penalties for Illegal Possession of Fentanyl

Possessing fentanyl or fentanyl-related substances for personal use without a valid prescription is a misdemeanor. The maximum punishment for a first offense is up to one year in jail and a minimum $1,000 fine. A second offense carries a punishment of at least 15 days and up to two years of incarceration and a minimum $2,500 fine. A person who has two or more prior drug convictions (federal or state) faces a minimum of 90 days and up to three years incarceration. (21 U.S.C. § 844 (2023).)

Federal Penalties for Trafficking Fentanyl

Most federal drug cases involve more than mere possession of a small amount of drugs for personal use. Federal law enforcement agencies are more interested in busting drug traffickers than users. Under federal law, drug trafficking includes manufacturing, distributing, dispensing, or possessing with the intent to manufacture, distribute, or dispense prohibited substances.

Penalties for trafficking vary based on the type and amount of substance involved. Here's an overview of some of the federal trafficking penalties for fentanyl and fentanyl-related substances. (21 U.S.C. § 841 (2023).)

Fentanyl (Schedule II)

40-399 grams mixture or substance containing a detectable amount

First offense: Not less than 5 years, and not more than 40 years in prison. Fine of not more than $5 million.

Second offense: Not less than 10 years, and not more than life in prison. Fine of not more than $8 million.

400 grams or more mixture or substance containing a detectable amount

First offense: Not less than 10 years, and not more than life in prison. Fine of not more than $10 million.

Second offense: Not less than 15, and not more than life in prison. Fine of not more than $20 million.
Fentanyl-Related Substance (Schedule I)

10-99 grams mixture or substance containing a detectable amount

First offense: Not less than 5 years, and not more than 40 years in prison. Fine of not more than $5 million.

Second offense: Not less than 10 years, and not more than life in prison. Fine of not more than $8 million.

100 grams or more mixture or substance containing a detectable amount

First offense: Not less than 10 years, and not more than life in prison. Fine of not more than $10 million.

Second offense: Not less than 15 or more than life in prison. Fine of not more than $20 million.

Under federal law, the government can ask to increase (enhance) a drug trafficker's sentence under certain circumstances, often involving prior convictions or particularly dangerous or abhorrent behavior.

Enhanced Penalties for Causing Injury or Death

Penalties for trafficking increase when the fentanyl manufactured, distributed, or dispensed, causes serious bodily injury or death (20-year mandatory minimum to life imprisonment on a first offense and mandatory life sentence on a second offense). (21 U.S.C. § 841 (2023).)

Enhanced Penalties for Targeting Young People

Drug traffickers who distribute fentanyl to people under 21 or at certain places where young people gather, like schools and playgrounds, face twice the maximum prison sentence and twice the maximum fine. Repeat offenders face even steeper penalties. (21 U.S.C. § § 859, 860 (2023).)

State Penalties for Fentanyl-Related Crimes

States also punish people who unlawfully possess, sell, manufacture, transport, and distribute fentanyl. Penalties vary from state to state. In many states, possessing a small amount of fentanyl is a misdemeanor. Offenses involving greater amounts, evidence of drug sales, and repeat offenders typically face increasing felony penalties.

State lawmakers are under pressure to fight the fentanyl overdose crisis. According to the National Conference of State Legislatures, over 600 fentanyl-related bills were introduced in 2023, and over 100 became law. Most of the new laws are designed to increase penalties for fentanyl-related crimes and raise awareness about addiction and the risk of counterfeit pills and fentanyl-contaminated drugs.

Can Fentanyl Dealers Be Charged with Homicide?

The increasing number of fentanyl overdose deaths is hard to fathom. The number of people who died in 2021 (67,325) is more than the number of people who died in motor-vehicle crashes (46, 980) and from gun-related injuries (48,830) that year. Prosecutors across the country are starting to use every tool in their arsenal as the death toll rises.

Drug-Induced Homicide Laws

According to the Prescription Drug Abuse Policy System, as of 2019, around half of the states have "drug-induced homicide laws." These laws allow prosecutors to press homicide (murder and manslaughter) charges against anyone who supplies or exposes another person to a fatal dose of a controlled substance.

Fentanyl Murder and Manslaughter

Even states without specific drug-induced homicide laws are filing murder and manslaughter charges against fentanyl suppliers and dealers. In July 2023, a prosecutor in Placer County secured what's believed to be the first fentanyl-related murder conviction in California. The 21-year-old defendant, Nathaniel Cabacungan, pleaded guilty to second-degree murder for supplying fentanyl to a 15-year-old girl who died shortly after consuming it in June 2022. He was sentenced to 15 years in prison in October 2023.

To get a second-degree murder conviction, prosecutors had to prove that Cabacungan knew that what he was doing could lead to death and did it anyway. According to the New York Times, Mr. Cabacungan was alleged to have known that the pill he provided to the girl contained fentanyl, knew she died after taking it, and then continued to sell more of the drug to others.

Another tragic and increasingly common scenario is prosecutors charging parents with murder or manslaughter when their children die from fentanyl exposure. Parents can face charges if their children ingest other drugs, but the potency of opioids dramatically increases the risk of accidental fatal overdose in small children. According to the Associated Press, a Maryland couple was convicted of involuntary manslaughter (unintentional killing in a grossly negligent manner) in the 2020 death of their 2-month-old son after mixing fentanyl in the same room where they prepared their baby's bottle. The couple were each sentenced to five years in prison and five years of supervised probation.

Talk to a Lawyer

If you've been charged with a crime relating to fentanyl or any other drug, contact a lawyer as soon as possible. An experienced criminal defense lawyer will be able to answer your questions, advise you about your rights, and walk you through your options.

If you or someone you know is struggling with substance use or mental health, contact the Substance Abuse and Mental Health Services Administration (SAMHSA) at 1-800-662-HELP (4357). SAMHSA offers 24-hour-a-day, 365-day-a-year support and referrals to local treatment facilities, support groups, and community organizations.

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