Is Fentanyl The New Crack?

By Zachary Siegel 06/08/16

A senator proposed harsher mandatory minimum sentences for fentanyl, but we've already learned the failure of this policy with crack.

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Is Fentanyl The New Crack?

U.S. Sen. Kelly Ayotte (R-N.H.) is attracting harsh criticism for her efforts to toughen penalties for fentanyl possession. It appears she may have missed the “treatment not jail” memo.

The senator is seeking to attach an amendment to the National Defense Authorization Act, a military spending bill, that would carry a five-year mandatory minimum sentence if a person is caught with two grams of any drug containing a detectable amount of fentanyl—instead of the current 40 grams. 

This amendment strikes a similar chord with drug policy reformers who have fought tooth and nail to undo harsh sentences triggered by small possession of crack cocaine—which resulted in the disproportionate incarceration of African Americans, though two-thirds of crack cocaine users are white or Hispanic.

In 2010, what was known as the 100-to-1 rule—under which five grams of crack carried the same penalty as 500 grams of powder cocaine—was reduced to 18-to-1 with the passing of the Fair Sentencing Act. However, critics argue that the 18-to-1 rule is still unfair, because pharmacologically the two are the same drug

The poor results of the original 100-to-1 crack versus powder cocaine sentencing rule should have informed Ayotte's proposal to boost mandatory minimum sentences, but that doesn't seem to be the case. Harsher penalties have historically been unsuccessful in deterring crime. Another flaw in the rationale behind the senator's amendment, as noted by Families Against Mandatory Minimums, is that fentanyl is typically used by dealers to boost other drugs, like heroin. By the time the drugs reach users, they have no idea that fentanyl was added in.

In a blog post for Reason, Scott Shackford called out this obvious fault line. “Dropping the thresholds (in two cases from 10 grams to half a gram) increases the likelihood that the law will be misused to imprison those who are actually just addicts, or just low-level people in the chain," Shackford wrote. "This is not an amendment about finding new ways to catch drug kingpins." 

Michael Collins, deputy director of the Drug Policy Alliance, agrees, saying there's no doubt in his mind that addicted people will be unfairly prosecuted. “Prosecutors will often use these trafficking charges against users,” he told Roll Call

Fellow conservatives have also taken aim at Ayotte’s attempt to ramp up penalties for drug possession, though for slightly different reasons. Jason Pye, of the conservative group FreedomWorks, said Ayotte’s amendment "would result in the incarceration of drug addicts in federal prison, leading to a higher prison population and associated costs to taxpayers."

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Zachary Siegel is a freelance journalist specializing in science, health and drug policy. His reporting has also appeared in Slate, The Daily Beast, Salon, Huffington Post, among others. He writes often about addiction, sometimes drawing from his own experience. You can find out more about Zachary on Linkedin or follow him on Twitter.