The iron law of prohibition

This article was amended on Thursday 5/12/22 to reflect last minute compromises made by the legislature at 9 p.m. on Wednesday 5/11/22.

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Jake Bukovich was home alone when he took the pill. 

It was a Tuesday night in Boulder. The 21-year-old University of Colorado student had just finished his summer internship and had the night off to relax with his new puppy. He had the house to himself—and he had a small bag of oxycodone M30 pills he’d bought for just such an occasion. He took one to settle in for what should have been an uneventful evening. 

The next day, however, in Eagle, Colorado, Jake’s mother, Carole, answered the door to a pair of grim looking police officers. They greeted her, confirmed she was Jake Bukovich’s mother, and informed her that her son was dead. His roommate had found him around 10 a.m. when he’d returned home to the puppy barking from behind Jake’s closed door.

“It was completely shocking,” Carole recalls, her voice cracking. Jake was a star athlete at Battle Mountain High School and he had a lot of friends at CU, where he was entering his senior year as a computer science major. Carole never had a reason to expect that awful moment. 

Jake’s autopsy wouldn’t come back for days. But the police and coroner knew almost immediately what had happened, she says; they’d seen enough fentanyl deaths in Boulder to recognize the signs. The cause of death on his death certificate was listed as “accidental overdose.”

“I can’t even tell you how angry that makes me,” Carole says. “Jake took one pill. One pill is not an overdose.”

That was in 2021. And like the majority of the 800-plus Coloradans that died from fentanyl that year (or the 40,000 others across the country), Jake had no idea he was even in possession of fentanyl, let alone that he was taking a pill that would take his life. Mitchell Gomez, an executive with DanceSafe, a drug-testing advocacy and education organization, agrees that deaths from counterfeit pills like Jake’s shouldn’t be considered “overdose deaths” in the classic sense. 

“They’re ‘overdoses’ in the medical, technical sense,” Gomez says, “but the vast majority of these deaths are people who are really being poisoned.” 

Aiming to address this crisis, Colorado’s HB22 1326, or the Fentanyl Accountability and Prevention Bill, moved to Gov. Polis’ desk on May 11, 2022, for its final signature before becoming law. The bill, one of the state’s most controversial and closely followed polcies of the year, would make simple possession of fentanyl—or any drug cut with it—a felony offense instead of a misdemeanor.

The House Appropriations Committee approved HB22 1326 on an 8-3 vote; Gov. Polis now has 30 days to sign it into law.

“I know people don’t think this is a perfect bill,” Rep. Alec Garnett (D-Denver), House speaker and sponsor of the bill, in a statement said, adding a “perfect bill” isn’t possible.

Among Garnett’s co-sponsors for HB22 1326 are Sen. Brittany Pettersen (D-Lakewood) and Rep. Leslie Herod (D-Denver), who was also behind the similarly controversial HB21 1317 Regulating Marijuana Concentrates Bill (see Weed Between the Lines, “Concentrated regulation,” July 1, 2021).

In 2019, Colorado passed HB19 1263, reclassifying quantities under 4 grams of nearly all Schedule I or II substances as a misdemeanor rather than a felony offense (see News, “High-country defelonization,” Sept. 9, 2019). It was widely regarded as a progressive step toward ending the drug war in this state, reducing criminal penalties that often target users instead of distributors. According to the Colorado Criminal Justice Reform Coalition’s (CCJRC) recent “Fentanyl in Colorado” report, “between January 2020 and January 2022, more than 31,000 drug cases in Colorado were filed against low-income individuals. Of those cases, 75% were for simple drug possession or for sharing drugs for personal use. Only 9% were for low-level dealing, 9% for mid-level dealing, and 6% for high-level dealing.” 

“The best way to treat drug addiction is not with a felony conviction but rather to connect the person with treatment,” Boulder’s District Attorney Michael Dougherty told Boulder Weekly in a 2019 interview about HB19 1263. 

This new bill, HB22 1326, would largely undo what HB21 1263 accomplished. It would reclassify possession of just 1 gram of any substance laced with even trace amounts of fentanyl as a felony.

Prior to its third reading in the state Senate, the bill included an important provision to ensure the bill wouldn’t target users who’d unwittingly been sold fentanyl. It would have required prosecutors to prove that someone “knew or had reasonable cause to believe” that they were in possession of fentanyl-laced substances. If they were unaware that fentanyl was present, the possession charges could have been dropped to a misdemeanor.

But on May 6, less than a week before the legislative session ended and during the bill’s third reading, the state Senate voted 18-17 to remove the “knowingly” provision. Meaning any user unwittingly caught with between 1 and 4 grams of fentanyl-laced cocaine, MDMA, heroin, pills or any other substance automatically gets a felony charge. If convicted, that will haunt their record for years or decades. The House Appropriations Committee rejected this change at 9 p.m., less than three hours before the end of the 2022 legislative session ended.

There are some positive aspects of HB 1326. The bill requires some felony offenders to be placed in a residential treatment facility for addiction treatment; it expands the entities eligible to receive opiate antagonists (like naloxone); it requires jails to provide opiate antagonists and prescribe medication for opiate use disorders when certain individuals are released; and permits schools to acquire and maintain opiate detection tests on-premise. The bill would also provide $20 million for the Antagonist-Naloxone Bulk Purchase Fund, appropriate $6 million to fund to the Harm Reduction Grant Program Cash Fund, and allocate $300,000 to supply opiate detection kits to eligible entities.

Proponents of the bill, like Garnett and Denver Police Chief Paul Pazan, argue that this “tough-on-crime” approach is the most effective way to mitigate the fentanyl crisis spiraling out of control in Colorado. However, drug reform advocates like Gomez are adamant that legislation like HB 1326 will only make things worse. 

“As you increase drug enforcement [penalties], what that does, inevitably, is encourage people who are doing drug transportation to switch to more potent analogs,” he says. “It’s called the ‘iron law of prohibition.’” 

Coined by former NORML director Richard Cowan in 1986, the “iron law of prohibition” suggests that when law enforcement intensifies, the potency of prohibited substances increases—or, as Cowan put it: “The harder the enforcement, the harder the drugs.”

Gomez likens the situation to alcohol prohibition: It was nearly impossible to find beer and wine between 1920 and 1933. Bootleggers were risking their freedom and there was far more value in running gin, moonshine and whiskey instead of lower ABV beverages. 

“The reason fentanyl became so prevalent is because it’s easier to smuggle,” Gomez says. “When border enforcement goes up, dose per smuggled shoebox becomes the primary metric of concern [for smugglers].”

Fentanyl is part of the third wave of America’s opioid crisis. The first wave began in the late 1990s: As opioid prescriptions began increasing with the rise of “pill mill” pharmacies, opioid overdose deaths began rising too. The second wave began in 2010: As many states started restricting access and addicted users became unable to get prescriptions, they started switching to heroin as a result. This third wave began in 2013: As more potent synthetic analogs began hitting the scene, fentanyl started spilling over and into other street drugs. 

Black market suppliers realized massive economic opportunities were opening, and so they started cutting synthetic opioids across the U.S. drug supply. Overdose deaths began exploding across the continent, along with the drug suppliers’ revenue-per-smuggled kilogram.

According to Statista.com, as of 2017, “the price of 1 kg of pure fentanyl for a drug trafficking organization (DTO) was about 4,150 U.S. dollars. … The revenue generated from 1 kg of fentanyl by a DTO is estimated to equal about 1.6 million U.S. dollars.”

Fentanyl is 50 times stronger than street heroin, explains the CCJRC’s “Fentanyl in Colorado” report. Its onset is extremely rapid and the effects last for only 30-60 minutes. Just two milligrams of fentanyl can be a lethal dose (one kilogram is enough to kill 500,000 people) and the Drug Enforcement Agency claims that about 42% of the black market pills they test contain at least two milligrams of fentanyl, and up to five. 

The very same day that Jake Bukovich was discovered in Boulder after taking one fentanyl-laced pill, the Gore Range Narcotics Interdiction Team (GRANITE) stopped a vehicle on I-70 just outside of Eagle where Jake grew up, confiscating 70 pounds of counterfeit oxycodone M30 pills laced with fentanyl (a haul of over 30 million pills), just like the one that Jake took. Those smugglers were going to prison no matter what, with or without HB22 1326—had the House agreed to leave the “knowingly” provision out of the bill, Jake would have been subject to felony charges too. Even though he only had a few fentanyl-laced pills and no idea what was actually in them. 

“I go back and forth on criminalization,” Jake’s mother Carole says. “I do think that if you’re distributing fentanyl in any way, shape or form, that you should be held accountable … but the police can’t be chasing every user … it needs to be the distributor or the manufacturer … if you just have fentanyl and you get caught with it, and then suddenly you’re a criminal, that’s not going to change anything.”

Terri Hurst, the policy coordinator for CCJRC, agrees with that sentiment. You can’t arrest your way out of a tainted drug supply, she says. Especially when policy makers are ignoring evidence and acting on outdated myths about drug regulation. 

“Our focus was to really try to dispel some of those myths that are out there and try to provide pragmatic approaches for how to deal with the overdose crisis, and fentanyl in particular,” Hurst says of the CCJRC’s recent “Fentanyl in Colorado” report. “A lot of what’s in this report is really focused on what we believe works to save people’s lives.”

For the report, CCJRC used data from the Centers for Disease Control (CDC) on state overdoses, comparing overdose rates by state. The first question they look at in the report: Do states that classify drug possession as a misdemeanor have higher rates of overdose deaths than those that classify it as a felony? 

“There is no correlation between drug overdose deaths and the severity of penalties for simple possession,” the report reads, accompanied by a graph and table showing the data. “Overdose death rates have risen throughout the country in recent years, including in states where simple possession is a felony.”

The report also asks if increasing criminal penalties for fentanyl distribution reduces the supply of fentanyl in a community. Again, the study found the answer was no.

“Incarcerating drug dealers has little or no impact on disrupting drug supplies because the drug market is dynamic,” the report reads. “It responds to the demand for drugs by replacing imprisoned sellers with either new recruits or increased drug selling by existing dealers, which is known as the ‘replacement effect.’” 

The CCJRC has a number of suggestions on how to mitigate the issue. Its report starts by recommending a drastic increase in access to naloxone, the life-saving nasal spray that can treat a narcotic overdose in emergency situations. Every Coloradan has a prescription for naloxone (brand name Narcan) and can purchase it at Walgreens—or, go search for a national organization like Naloxone for All and find a distribution point where you can pick it up for free. 

CCJRC also recommends dramatically expanding the number and types of entities eligible to access these medications, and even installing naloxone vending machines where high-risk populations might gather. 

Carole Bukovcich has also become an ardent advocate for naloxone in the months since Jake’s death. She took a training in Narcan administration, and is looking into how she can help distribute it to others. She’s also started speaking alongside Maggie Seldeen with High Rockies Harm Reduction, helping to spread awareness and educate Colorado’s mountain communities about the fentanyl crisis. Seldeen says Naloxone should be as commonplace as automated external defibrillators (AEDs) or fire extinguishers.

“Narcan should be everywhere,” she says. “It should be in every dorm, in every college. It should be in every college house. It should be at bars, it should be at restaurants, it should be at Red Rocks,” her list continues. “It should be a tool people can use and it should be that common.”

The CCJRC report also recommends focusing federal stimulus dollars toward drug prevention, harm reduction, treatment and recovery services; expanding the Good Samaritan law to include the crime of “drug sharing”; increasing the number of harm-reduction organizations; making fentanyl testing strips and other drug-checking resources free or cheap and easily attainable; advocating for realistic and evidence-based education programs; allowing overdose prevention sites for communities that want and need them; and enacting “safe supply” programs that would provide prescribed medications as an alternative to the toxic illegal drug supply.

Some progressive drug policy advocates say broad drug decriminalization bills, similar to the “Drug Decriminalization and Addiction Treatment Initiative” that Oregon passed in 2020, are one of the best ways to address the problem. But Gomez, with DanceSafe, would go even a step further. He points out that simple decriminalization still leaves the production of drugs in the hands of black market suppliers. 

“Decriminalization is not enough,” he says. “I think what we’re talking about here, very explicitly, as the only way to end fentanyl deaths is legal drug supply.” 

Drug overdoses are inarguably a public health crisis in the U.S., accounting for over 100,000 deaths in 2021. Gun deaths (20,726), traffic deaths (31,720), and suicides (1,859) combined hardly equate to half of that. Arrests and felony charges aren’t going to stop demand for or use of these substances, Gomez aruges, as evidenced by more than 50 years of failed drug policy. Nor is fentanyl going to extract itself from the black market drug supply now. It will only be replaced by other, even more potent analogs like carfentanil or nitazenes. 

“The only choice society really has is: How do we want to control the distribution and use of these drugs?” Gomez asks. “And for some reason, the United States has decided that all of the control [for this health crisis] should belong to criminal gangs.”

Real solutions are on the table, Gomez says. Legal regulation is a real possibility—it just requires a cultural shift and the right kind of political will to accomplish.

“Fentanyl deaths are a choice that we’re making as a society,” he says “We’ve decided to allow these deaths in a very real sense … in order to continue the policies of prohibition, which have very demonstrably failed.”

Until that societal change is realized and the political will mustered, advocacy organizations and activists will continue their fight. DanceSafe will continue offering volunteer-run drug-testing services at music events, selling testing strips, and running education campaigns around the U.S., promoting safe and responsible drug usage. CCJRC will continue to advocate for more progressive drug policies in Colorado, fighting for criminal justice reform and advocating for more progressive drug policies. 

And Carole Bukovich says she’s going to continue telling Jake’s story and sharing her truth, in the hopes that it could save even one life. Jake didn’t have to die, she says; and others don’t either. If he’d known not to take that pill while he was home alone—if a roommate had been with him and had naloxone— if he’d had the right kind of testing strips readily available—or even if she’d known how to have an honest, realistic conversation about the life and death risks of using street drugs in the age of fentanyl with her son—maybe things would be different. 

But, she says, she can’t think about what if’s. 

“I think it really begins with education and conversation,” Carole says. “This isn’t someone who’s addicted to and overusing drugs. This is your neighbor. This is your kid. It’s your kid’s friend.” 

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