Nancy Gertner is a senior lecturer at Harvard Law School and a former U.S. district judge.
Attorney General William P. Barr’s support for an expansion of mandatory minimum sentences for federal drug crimes involving fentanyl analogues should come as no surprise given his long record of hawking incarceration as a solution to our drug crisis. We have seen this movie before; it does not end well.
Illicit analogues are synthetic compounds that are substantially similar to Schedule I or II substances in chemical structure. Some analogues are dangerous substances with a substantial potential for misuse. Others are benign or helpful. For example, naloxone, a life-saving antidote to opioid overdoses, is an analogue of morphine, a powerful opioid. Scientists believe that an antidote for fentanyl overdoses could well be within the substances scheduled under a proposal pending in Congress.
The only way to tell how a drug will act in the body is through pharmacological research to measure its effect. Barr’s proposal omits that crucial step, enabling federal prosecutions in cases involving substances with no scientific research confirming the drug’s physiological effect.
Barr recently warned that if his request were not granted, illicit fentanyl analogues would be “legal.” That is false. Dangerous fentanyl analogues have long been illegal and will continue to be under existing laws. One such tool, the Federal Analogue Act, exposes defendants to sentences of up to 20 years, and, if death or serious injury results, 20-year mandatory minimums.
But the analogue act is limited; it requires the government to prove a substance is actually harmful or intended to be harmful. Barr wants to eliminate that hurdle — thereby paving the way to potentially prosecute harmless substances — by pushing legislation, known as the Stopping Overdoses of Fentanyl Analogues Act (SOFA). Earlier this month, the Senate granted some of Barr’s wishes, passing a temporary measure that adopts SOFA’s broad approach and enabling the Justice Department to seek severe punishments for a potentially limitless set of fentanyl analogues.
That means a person dealing in one of these analogues — even one that is harmless — could be subject to mandatory-minimum penalties with no opportunity to prove the analogue is benign. For any offense involving 10 grams of a substance that contains a detectable amount of a SOFA substance, the Justice Department could seek a five-year mandatory minimum. (In contrast, 100 grams or more of heroin is required to trigger the same mandatory minimum.) Judges will have no choice but to impose mandatory minimums, even though street-level dealers — many of whom are users themselves — have no idea that the drugs they are selling contain fentanyl.
According to the Sentencing Commission, most people sentenced for fentanyl trafficking in 2016 were at the bottom of the drug distribution ladder, including mules or couriers (25.5 percent) and street-level sellers (23.5 percent). In 2018, 77 percent of those prosecuted for fentanyl were black or Hispanic.
We must do everything we can to stop the opioid epidemic, but not with the failed policies of the past. The opioid epidemic persists despite decades of the punitive approach Barr touts. Since 2014, federal prosecutions for fentanyl have increased more than 4,700 percent. In recent decades, such an approach has resulted only in mass incarceration — a nearly 790 percent increase in the federal prison population from 1980 to its peak in 2013, disproportionately impacting people of color.
Republican Sens. Rob Portman (Ohio) and Shelley Moore Capito (W.Va.), who represent states among the most devastated by the opioid epidemic, deserve praise for introducing language intended to exclude the application of mandatory minimums for fentanyl analogues. The House should follow their lead.
It is ironic that Barr’s proposal comes only one year after enactment of the First Step Act, when Congress agreed that mandatory minimums have failed, and six years after the National Research Council wrote that “the successive iterations of the war on drugs … are unlikely to have markedly or clearly reduced drug crime over the past three decades.”
The low-level people disproportionately burdened with federal drug sentences are easily replaced on the street. Their incarceration does not stop addiction and will not protect users from overdose deaths. They are not the ones creating these analogues and often don’t even know what is in the drugs they possess or sell. The real target here should not be mules, couriers or street-level sellers but rather high-level importers.
Barr is waging the same failed war, what Yogi Berra might describe as, “déjà vu all over again.” He seeks to extend mandatory minimums without regard to their impact on people of color, let alone whether they will make our communities safer. They will not.
This article originally appeared in The Washington Post.