A federal agency that recommends sentencing guidelines to judges will weigh a new plan to lengthen prison terms for people caught selling fentanyl, a synthetic opioid responsible for 20,000 overdose deaths in 2016.
The drug has united drug users, public health workers, and law enforcement officials alike in fear over the drug’s potency — it’s often mixed with fillers or other drugs, such as heroin or black-market pills, in doses too small to gauge reliably and killing users. Citing fentanyl's destructiveness, the United States Sentencing Commission is holding its first hearing Wednesday on a new proposal that recommends, among other changes, that first-time offenders who sell a half-ounce of fentanyl be sentenced to up to five years in prison — more than double the current top recommended term.
The Justice Department supports the proposal and contends this crackdown is necessary because small amounts of fentanyl could put thousands of lethal doses on the street.
Yet ratcheting up penalties invokes troubling echos of the 1980s’ rush to imprison drug dealers for years or decades, with negligible impact on drug abuse, according to criminal defense lawyers and activists who are protesting the plan.
Fentanyl is somewhat unique, though, and raises fresh concerns because of its potency. Critics worry that the plan to hike sentences based on the drug’s weight will incentivize selling the drug in its most dangerous forms. Top-level distributors would have reason to sell fentanyl in its highest concentrations, in order to decrease their risk of longer prison terms. Meanwhile, the critics argue, street level-dealers who sell the drug heavily laden with fillers could face longer prison terms, despite selling less of the active compounds.
Lindsay LaSalle, a staff attorney for the Drug Policy Alliance, which advocates treating drugs as a health matter, plans to testify that the recommendations will have “perverse public health impacts.”
“Under the current amendments,” her prepared testimony says, “fentanyl cut with heroin or other substances as a means of warding off fatal overdose will be punished more harshly than those selling the most potent, pure form of the drug.”
This sort of tension between potency and punishment is common among hard drugs, to an extent. (For instance, cartels tend to smuggle cocaine in high concentrations, so there’s less to conceal and the weight is lower, before domestic dealers add bulking powders so they can make more money.) But with fentanyl, the slightest variations in a dose can kill users — and dealers, who may not know their product includes fentanyl, can oversaturate their mixed products with too much, especially as batches change.
Critics worry that hiking sentences based on the drug’s weight will incentivize selling it in more dangerous forms.
BuzzFeed News reported last year that according to the Drug Enforcement Administration, 1 milligram of pure fentanyl may get a user high, while 2 milligrams can be lethal.
“Fentanyl is safer the more diluted it becomes, which happens lower on the distribution chain,” Paul Hofer, a senior policy analyst for the Federal Public and Community Defenders at Johns Hopkins University, told BuzzFeed News.
“The incentives are to keep it in its purest form, to keep it potent as possible, so they get a sentencing benefit,” Hoffer, who was a research associate for the US Sentencing Commission from 1995 to 2005, said of the proposal. He calls the potential results backward, but says it’s a minor blip in the overall missguided scheme of over-sentencing for drug offenses.
The Sentencing Commission’s recommendations do not bind courts, but they offer guidelines for federal judges. Judges sometimes break with the guidance — the commission reported last year that judges, on average, sentenced fentanyl offenders to about 15% less time than the recommended bottom of the range.
In the latest proposal, the commission advises punishments for fentanyl to match penalties for the drug’s analogs, which have slight chemically differences and carry longer sentencing ranges.
Dealers caught selling small amounts, such as a gram, should spend about six months longer behind bars than they currently do, according to the recommended guidelines. Meanwhile, those who sell a kilo of fentanyl should face an extra two years, bringing the prison term for a first-time offense up to 12 years.
The Trump administration has backed the longer prison terms, filing public comment with the commision last July and November. The current minimum punishment of 10 to 16 months for selling the smallest quantities “is plainly inadequate to account for the dangerous nature of fentanyl and analogues,” says a letter from the Drug Enforcement Administration, a subdivision of the Justice Department. The agency says a person who pleads guilty could get a six month sentence for selling three grams “despite having placed hundreds if not thousands of deadly doses of fentanyl on the streets.”
But the Federal Public and Community Defenders reject that line of thinking, pointing out the Justice Department itself has noted tiny amounts of fentanyl are often mixed with inactive ingredients in pills, which can weigh up to a half a gram each.
“So the four grams the Department claims is enough to hypothetically ‘kill approximately 2,000 people’ more likely represents, in the real world of guideline calculations, about 8-16 non-lethal doses sold to unsuspecting addicts looking for a cheaper alternative to prescription drugs,” the group wrote in a Nov. 13 letter to the commission.
LaSalle, meanwhile, noted that the Pew Charitable Trusts found in a 50-state review there is no relationship between state drug imprisonment rates and drug use or overdose deaths.
In advance of Wednesday's hearing, the DEA deferred questions to the Justice Department, which did not immediately respond to a request to comment about concerns raised by critics.