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Senate Proposal Would Expand Mandatory-Minimum Drug Sentencing — Again

These amendments would fuel mass incarceration, separate families and cause more pain in communities suffering from drug problems.

Sen. Kelly Ayotte of New Hampshire speaks at the Conservative Political Action Conference in National Harbor, Maryland, on March 15, 2013. (Photo: Gage Skidmore)

In a move that would reinvigorate one of the most harmful innovations of the drug war, Sen. Kelly Ayotte (R-New Hampshire) is pushing to vastly expand mandatory-minimum sentencing for those convicted of possessing the opiate drug fentanyl. Her proposal is facing fierce opposition from public health and civil rights advocates eager to end the war on drugs.

Nearly 100 organizations sent a letter to Senate leadership this week opposing the legislation, which they say would extend harsh punishments to low-level drug sellers and users struggling with addiction.

Mandatory-minimum sentencing laws became a central feature of the drug war during the anti-drug hysteria of the 1980s and ’90s, and require judges to set minimum sentences for certain crimes. These sentences cannot be lowered regardless of circumstance, and now drug offenders make up 60 percent of the federal prison population.

Fentanyl is a potent synthetic opioid that is sometimes mixed into illicit heroin supplies or used to make fake prescription painkillers. The drug has been in the news a lot lately because it reportedly killed pop star Prince, and has contributed to a spike in overdose deaths in parts of the country hit hard by rising rates of opioid misuse — including Senator Ayotte’s home state of New Hampshire, where she faces a challenger in a Republican primary race.

The clash over Senator Ayotte’s fentanyl proposal also comes as Republicans and Democrats in the Congress are uniting around an enthusiasm for sentencing reform and some states are rolling back mandatory-minimum sentencing for drug crimes. Meanwhile, the Obama administration is signaling that the country’s highly publicized opioid problem should be addressed more as a public health issue than a criminal one.

The coalition of groups opposing Senator Ayotte’s proposal, which range from human rights and harm reduction organizations to the National Organization for Women, said it would “perpetuate a public health crisis” and turn back the clock on efforts to reduce mass incarceration.

“In a time when nearly 1 in 100 Americans is incarcerated and populations of color continue to be disproportionately affected by convictions, we must embrace a public-health approach to combatting the harmful effects of fentanyl and other opioids,” the coalition told Senate leaders.

Mandatory-minimum sentencing for possession of certain amounts of heroin and fentanyl is nothing new, but Senator Ayotte’s proposal, which was recently added as two amendments to a massive defense-spending bill, would drastically lower the threshold that triggers mandatory-minimum sentencing in fentanyl possession cases.

Currently, possessing 10 grams of a substance or mixture containing illegally produced fentanyl carries a mandatory sentence of five years in prison, but Senator Ayotte’s amendments would lower that amount to half of a gram. Anyone possessing between five and 20 grams would face a mandatory minimum of 10 years behind bars, and that could be extended to 20 years or life without parole if the defendant has prior drug convictions.

Senator Ayotte claims the amendments are aimed at countering production and trafficking of illegal drugs. However, reform advocates argue that the people in possession of a few grams of powder containing fentanyl are often struggling with opioid addiction, not working as big-time drug dealers. Under the new minimums, judges would be required to send people in need of medical treatment to prison, where access to lifesaving addiction medication is severely limited.

Michael Collins, a policy director at the Drug Policy Alliance, said that penalties for fentanyl possession are harsh because the drug is much more potent than heroin, but reducing the amount needed to trigger a mandatory sentence only expands the prison dragnet to include people far down the supply chain.

“I don’t think there is any scientific or public policy rational behind these numbers,” Collins told Truthout.

The sentencing reform group Families Against Mandatory Minimums (FAMM) points out that the purity of the substance or mixture does not matter, and a mandatory-minimum sentence would still be required for someone convicted of possession of 1.9 grams of baking soda mixed with .1 grams of fentanyl. Even if prison were an effective deterrent, most low-level dealers don’t know when drugs they’re selling contain fentanyl, which is often cut into drug supplies by traffickers in China and Mexico, not the United States.

“No matter how frightening New Hampshire and the nation’s opioid crises are, mandating lengthy (and expensive) prison sentences for addicts and low-level users is the wrong approach,” FAMM director Kevin Ring co-wrote in a recent op-ed with Eric Sterling, the director of the Criminal Justice Policy Foundation.

Collins called the opioid problem in New Hampshire a “tragedy” and gave Senator Ayotte credit for supporting public health responses such as expanding access to certain addiction treatments, but he called the fentanyl amendments a “disappointing step in the wrong direction.” He said Republicans who have pushed for criminal legal reforms should be concerned about the legacy of the current Congress.

“It is really important that the Republicans who have supported sentencing reform apply the same thinking to these amendments,” Collins told Truthout.

Other opponents, such as Sen. Cory Booker (D-New Jersey), who took the floor to speak out against Senator Ayotte’s amendments for 40 minutes on Tuesday, point out that mandatory-minimum sentencing for drug crimes has been around for decades and has failed to reduce the availability of illegal drugs or solve the social problems related to their misuse.

“We’ve seen a rush like this towards mandatory minimums before,” Booker said. “In the 1980s and ’90s we piled on mandatory-minimum sentences and ‘three-strikes-you’re-out’ laws in response to the growing drug problem and drug epidemics in the United States, but this did not stop that epidemic. It didn’t work then, and there’s no reason to expect it to work now.”

Instead, opponents argue, Senator Ayotte’s amendments would fuel mass incarceration, separate families and cause more pain in communities suffering from drug problems.

“What did the war on drugs do?” Booker asked his fellow senators. “Well, it increased our federal prison population by 800 percent since 1980 alone.”

Correction: This article originally stated that drug offenders make up 60 percent of the prison population. Drug offenders do make up about 60 percent of the population in federal prisons, but that figure does not include state prison systems.

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