Defendants’ rights at risk in fentanyl fears

Although initially driven by prescription drugs, most opioid deaths now involve illicit drugs, including heroin and fentanyl.
Although initially driven by prescription drugs, most opioid deaths now involve illicit drugs, including heroin and fentanyl.(Tom Gannam/Associated Press/File)

FENTANYL IS DANGEROUS, but groundless fears of even touching the drug have gotten the better of the Massachusetts judiciary.

Last month, the Commonwealth quietly became the first in the country to ban fentanyl and carfentanil samples from being brought into a courtroom as evidence in criminal proceedings, after the Massachusetts Trial Court determined that the mere presence of both synthetic opioids in the courtrooms — even when the drugs have been securely packaged — endangers attorneys, jurors, and defendants.

It’s an overreaction that risks reinforcing misinformation surrounding these two drugs. Both are, unquestionably, highly toxic opioids: Fentanyl and carfentanil are 50 and 5,000 times more potent than heroin, respectively, and account for a rising share of overdose deaths. But the misunderstanding of the real risks associated with them, and the resulting misguided state policy, are troubling on a few levels. One is how a few incidents with first responders have evolved into policy in Massachusetts courtrooms. The ban also sets a bad precedent for restricting physical evidence from courtrooms, weakening a fundamental right for defendants.

The myths around fentanyl entered the mainstream in the last year, after a handful of incidents went viral. There was the Ohio patrolman who allegedly passed out soon after brushing traces of a what he believed was fentanyl off his shirt without gloves. He received four doses of Narcan. In another Ohio incident, three nurses were also given Narcan after being exposed to suspected fentanyl.


As Dr. Edward Boyer, an emergency physician and medical toxicologist at Brigham and Women’s Hospital, argued in a New York Times piece last month, the incidents were probably “examples of the post hoc ergo propter hoc fallacy” — the victims assumed a cause-and-effect relationship where none really existed.


The paranoia reached such a pitch that the American College of Medical Toxicology and American Academy of Clinical Toxicology released a paper concluding that the risk to emergency responders of exposure to clinically significant amounts of fentanyl (and its analogs) is extremely low. For routine handling of the drugs, “nitrile gloves provide sufficient dermal protection,” they wrote. Researchers concluded that the incidents involving first responders were not related to opioid poisoning. “And in a lot of the cases, the way that they were exposed doesn’t make sense, like brushing a small amount of powder off a uniform,” the lead author of the paper told STAT, a sister publication of The Boston Globe. After all, if users could ingest fentanyl just by smelling or touching it, why would they bother injecting it?

Fentanyl is not the first dangerous item ever presented in a courtroom. The judiciary handles guns and knives, for instance, so that defendants can be confronted with the evidence against them. The legality of the fentanyl ban is already being challenged, and for good reason: The rights of defendants should take precedence over misguided fears.