Lawmakers have introduced legislation that would allow federal prosecutors to pursue attempted murder charges for any form of fentanyl distribution—even with no overdose linked to the case.
Representative Mike Lawler (R-NY) introduced the Fentanyl Kills Act in the House on August 22, where it’s being cosponsored by representatives Barry Moore (R-AL), Jim Baird (R-IN) and Michael Baumgartner (R-WA). Lawler announced the legislation August 25 and seemed to link it to National Fentanyl Prevention and Awareness Day, though that was August 21.
“Any individual who has been found to have trafficked fentanyl shall be deemed to have attempted to perpetrate murder,” the Act states, “and shall be subject to the penalty pursuant to [that].”
The legislation defines trafficking to essentially mean any fentanyl-related federal charge other than simple possession. Specifically, the Act references production, manufacture, distribution, sale, financing, transport, dispensing and “possession with intent to manufacture, distribute or dispense.” And it applies to aiding and abetting such activities, or even attempting them regardless of the outcome. It also purports to apply to fentanyl trafficking outside the United States, if the substances involved were intended for the US market, even without the defendant necessarily being involved in that process.
Federal law states that the maximum penalty for attempted murder is a 20-year prison sentence plus a fine. The specific section referenced in the Act, however, appears to correspond not to attempted murder but to first-degree murder, which is “punished by death or by imprisonment for life.” Lawler’s office did not respond to Filter‘s request for clarification of the penalties attached to the proposal.
Federal sentencing guidelines specific to fentanyl and fentanyl analogs, meanwhile, penalize trafficking with between five years and 40 years in prison for a first-time conviction, and between 10 years and life in prison on a second conviction, for cases that have not been linked to either fatal or nonfatal overdose. For cases involving larger quantities that have still not been linked to overdose, the penalties are between 10 years and life in prison for a first-time conviction, with the minimum raised to 20 years on a second conviction.
Anyone found with at least 40 grams of a fentanyl mixture, or at least 10 grams of a fentanyl analog mixture, could be charged with possession with intent to distribute regardless of whether some or all was for personal use. “Mixture” refers to the total weight of a sample that contains any amount of a fentanyl-related substance, meaning the bulk of what gets counted toward those thresholds is inert fillers like sugar or acetaminophen. The Act additionally applies to fentanyl precursor chemicals, not merely the finished product.
By including dispensing as a potential trafficking activity, the Act could be legally applicable to cases of sharing between friends even when no money was exchanged.
“The Fentanyl Kills Act is about accountability,” Lawler stated. “It’s about making sure that those who profit off the destruction of our children, our neighbors, and our communities pay a price equal to the devastation they cause.”
The bill is identical to a version Lawler introduced in 2023, cosponsored by Baird and Representative David Valadao (R-CA).
In April, senators introduced a bill that would amend the same section of US law to punish fentanyl distribution as felony murder, with those corresponding penalties of either a death sentence or a life sentence in prison—but only for cases that had an overdose death linked to the distribution.
State-level fentanyl homicide laws are ramping up across the country, but they’re predicated on the fentanyl distribution being linked to an overdose death. In a minority of states, Good Samaritan overdose laws—which offer people some degree of legal immunity from possession charges, if they need to call 911 to the scene of an overdose—extend to distribution charges. And in some of those states, such as Rhode Island, the fentanyl homicide law has a carveout for people who appear to have engaged in some form of distribution to someone who then began to overdose, if they called 911.
But these protections wouldn’t carry any weight in federal court. The prospect of being sentenced to decades in prison for bringing a small quantity of fentanyl to a friend, even if no one died, may make people scared to call for help if there’s a possibility of facing those charges.
On August 22, the same day the Fentanyl Kills Act was introduced, Rep. Eugene Simon Vindman (R-VA) introduced the Nitazene Control Act, which proposes to permanently ban all forms of the synthetic opioid under Schedule I of the Controlled Substances Act. Baumgartner is also a cosponsor on that legislation.
Image (cropped) via United States Drug Enforcement Administration