Republican Kelly Ayotte from New Hampshire has put forth amendments to a defense spending bill that would put into effect a mandatory prison term with a minimum of five years for anyone caught with as little as half a gram of fentanyl. The current trigger for a similar punishment is 20 times more than that amount. Fentanyl is often used as a painkiller in hospitals.
In recent years, the drug has contributed greatly to an increase in deaths because of overdose, specifically in New England. That the drug is dangerous is not an issue, but advocates are arguing over whether fentanyl should be treated as a criminal justice crisis or a public health emergency.
This debate goes to Capitol Hill next week when the Senate begins discussions on the National Defense Authorization Act and the Judiciary Committee holds a hearing on “deadly synthetic drugs.”
Lobbyists and other groups who have been urging Congress to go easy on penalties for drug crimes have called the amendments “a huge step backward.” “There’s a strong push to do criminal justice reform for drug-related crimes,” said Michael Collins, deputy director of the Drug Policy Alliance. “This flies in the face of all of that.”
Collins added that half a gram is such a small amount that if a lawyer wanted to prosecute someone who used the drug, like Prince, it could in theory put the person behind bars for five years.
“Intent to distribute” has to be proved, but Collins points out that trafficking charges are often easily tagged onto a case by prosecutors by saying a person in possession was going to sell it to friends. This is what happened to crack cocaine.
Fentanyl use in the northeast US has risen “exponentially” over the past two years, says the Drug Enforcement Administration. In 2014, heroin pushers began spiking the drug with fentanyl to boost its effects. A DEA spokesperson said fentanyl is up to 50 times stronger than heroin, which makes it more profitable for drug cartels.
People who engage in criminal behavior like drug use are not deterred by harsh penalties,
Jason Pye from the conservative advocacy group FreedomWorks wrote. “They commit crimes because of addiction and the chances they will not be caught. There is very little reason to believe that harsher penalties will deter use.”
Pye said the best response is not in punishing addicts, but offering them better drug treatment and stopping the international drug trade.
Ayotte spokesperson Chloe Rockow said in an email: “Though the DEA estimates that fentanyl is up to 50 times more powerful than heroin, the penalties for trafficking in the two drugs are significantly different. As New Hampshire battles a growing substance abuse crisis, the state has seen an increase of overdose cases linked to fentanyl. With support from NH law enforcement, Senator Ayotte introduced legislation — and this amendment — to ensure that the penalty for trafficking in fentanyl reflects the deadliness of that substance.”
Rockow added: “Senator Ayotte also knows that we can’t arrest our way out of this problem and has been a strong advocate for a comprehensive approach to this crisis – one that includes resources prevention, treatment, and education, like the Senate-passed Comprehensive Addiction and Recovery Act that she helped introduce.”
New findings regarding Prince’s death from fentanyl have pushed the drug into the headlines once more after news broke that the musician died from a self-administered overdose.
Drug-policy experts are familiar with controversies on the drug, as crack cocaine was responsible for the death of basketball star Len Bias in 1986. After the incident, legislators passed mandatory minimum penalties that have since been heavily criticized.
“We’ve been here before,” said Collins. “We’re seeing the same type of hysteria around fentanyl that we saw in the 1980s around crack.”