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| Liz Komar |
Overdose deaths reaching an all-time high in 2022[1] despite decades of criminalization proves that the war on drugs has failed. Americans need public health solutions, not more prison time. That is why lawmakers in Congress should vote no on the Halt All Lethal Trafficking of Fentanyl Act, or the HALT Fentanyl Act, and focus on funding harm reduction and treatment.
Fentanyl and fentanyl analogues — substances chemically similar to fentanyl — are partially responsible for the skyrocketing rate of opioid overdose deaths.[2] Because fentanyl is about 50 to 100 times more potent than morphine, and because a lethal dose can be very small, fentanyl and fentanyl analogue contamination of other substances can raise the risk of a deadly overdose.[3]
Despite myths to the contrary, however, fentanyl and fentanyl analogues are already criminalized. Fentanyl is a Schedule II drug and its analogues are already criminalized under the Federal Analogue Act[4] — which requires prosecutors to prove that an analogue is actually harmful like fentanyl in order to secure a conviction, and is a sensible protection given that some analogues can be harmless or even helpful. Additionally, all fentanyl analogues — regardless of whether they are harmful, helpful or untested — are currently also temporarily criminalized as Schedule I substances.
The HALT Fentanyl Act, which passed in the U.S. House of Representatives last year and is currently pending in the U.S. Senate, would make that classwide scheduling permanent.[5] That means that if an individual were found to be in possession of a fentanyl analogue with intent to distribute, even if the analogue did not affect the body like fentanyl, they could be subject to lengthy mandatory minimums.
An alternative bill introduced in 2022, the Temporary Emergency Scheduling and Testing of Fentanyl Analogues Act, or TEST Act, would still schedule all fentanyl analogues, but it would at least require the U.S. Department of Justice to test existing analogues and remove them from Schedule I if they are harmless, as well as ease restrictions on research.[6]
Mandatory minimums, which require a specific minimum prison term for certain crimes, regardless of individual circumstances, have long been one of lawmakers' preferred tools in the war on drugs. As crime rose in the 1980s and 1990s, lawmakers rushed to address public concerns by limiting the discretion of sentencing judges and parole boards.
Legislators lengthened sentences by imposing mandatory minimums for many drug offenses, and with truth-in-sentencing laws that limited parole and laws that mandated extreme sentences for repeat offenses.[7] The idea was that the threat of longer sentences that comes with mandatory minimums would discourage people from committing crimes. In practice, however, mandatory minimums are a poor means of improving public safety.[8]
Research makes clear that people are deterred from committing crimes by the certainty of punishment — that is, the likelihood they will be caught — not by the severity of that punishment.[9] Meanwhile, mandatory minimums cause significant harm to individuals, families, communities and the overall fairness of the criminal legal system.
Mandatory minimums cause racial and ethnic disparities to flourish. For example, the draconian Anti-Drug Abuse Act of 1986 created a quantity-based 100-to-1 disparity between federal crack cocaine and powder cocaine offenses, imposing the same five- and 10-year mandatory minimum penalties for selling five and 50 grams of crack cocaine as for 100 times the amount of powder cocaine.
In 1986, before the law passed, the average federal drug sentence for African Americans was 11% higher than for white people, but within four years, this average was 49% higher.[10] Mandatory minimums devastated Black communities by shattering families and removing many individuals from their loved ones for decades.
The Fair Sentencing Act in 2010 lowered but did not eliminate this disparity. The Eliminating a Quantifiably Unjust Application of the Law Act, or EQUAL Act, which was introduced in 2021 and would eliminate the disparity entirely, has received broad bipartisan support, including from law enforcement, but has still yet to pass Congress.[11]
Today, studies show that Black people receive mandatory minimum sentences more frequently than white people. A 2017 U.S. Sentencing Commission report on federal drug sentences revealed that Black people were the most likely to have been sentenced to a mandatory minimum than any other group.[12] Studies have also shown that despite using drugs at equal rates as white people, Black and Hispanic individuals comprise the majority of persons convicted of drug-related offenses, which are the most common federal offenses subject to mandatory minimums.[13]
Mandatory minimums are also highly coercive during the plea bargaining process. The threat of them can encourage defendants to plead to a different crime to avoid a stiff, mandatory sentence. And given that the prosecutor controls the decision to impose a charge that carries a mandatory minimum sentence, mandatory minimums simply transfer the role of discretion and bias from judges to prosecutors rather than eliminating the role of discretion and bias altogether.
Mandatory minimums also worsen prison conditions. Overcrowding in prisons exacerbates extremely unsanitary and dangerous living conditions. Eliminating mandatory minimums would allow for the reallocation of resources that could go toward funding rehabilitative services and programs, making communities safer.
The mountain of evidence against mandatory minimums has yielded a growing consensus among experts and advocates that mandatory minimums should be abolished. A wide array of organizations — including the American Bar Association, the American Law Institute and the NAACP — has proposed their elimination.[14]
Some promising reforms are already underway at the state and federal levels. Almost half of all states, as well as the federal government, have reduced or eliminated some mandatory minimums related to drug offenses.[15] But in the wake of fears about crime and rising overdose deaths, legislators risk backsliding or doubling down on the failed approaches of the past.
The HALT Fentanyl Act is just that. The data is clear: Longer sentences do not reduce overdoses.[16]
It's time for Congress to listen to the research and to the majority of Americans by ending mandatory minimums, not expanding them.[17]
Liz Komar is sentencing reform counsel at The Sentencing Project.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] National Center for Health Statistics, Drug Overdose Deaths in the United States, 2002–2022 (March 2024), https://www.cdc.gov/nchs/products/databriefs/db491.htm.
[2] Center for Disease Control and Prevention (2023). Opioid Overdose, https://www.cdc.gov/drugoverdose/deaths/opioid-overdose.html#synthetic.
[3] National Institute on Drug Abuse (2023). Fentanyl, https://nida.nih.gov/research-topics/fentanyl#:~:text=Because%20fentanyl%20is%20about%2050,increase%20one%27s%20risk%20of%20overdose.
[4] 21 U.S.C. § 813. Treatment of controlled substance analogues, https://www.law.cornell.edu/uscode/text/21/813.
[5] H.R. 467 (2023-2024). HALT Fentanyl Act, https://www.congress.gov/bill/118th-congress/house-bill/467.
[6] S.5167 (2023-2022). Test Act, https://www.congress.gov/bill/117th-congress/senate-bill/5167/text?r=15&s=1; Office of Senator Cory Booker (2023). Temporary Emergency Scheduling and Testing of Fentanyl Analogues Act of 2022 (TEST Act) Summary, https://www.booker.senate.gov/imo/media/doc/test_act_summary.pdf.
[7] Nellis, A. (2024). How Mandatory Minimums Perpetuate Mass Incarceration and What to Do About It. The Sentencing Project, https://www.sentencingproject.org/app/uploads/2024/01/How-Mandatory-Minimums-Perpetuate-Mass-Incarceration-and-What-to-Do-About-It.pdf.
[8] Id.
[9] Nagin, Daniel S. (2013). Deterrence in the Twenty-First Century: A Review of the Evidence. 42 Crime & Just. 199, 207.
[10] McCurdy, J. & Vagins, D. J. (2006). Cracks in the system: Twenty years of unjust federal crack cocaine law. ACLU, https://www.aclu.org/documents/cracks-system-20-years-unjust-federal-crack-cocaine-law.
[11] H.R.1062 (2023-2024), EQUAL Act, https://www.congress.gov/bill/118th-congress/house-bill/1062?s=1&r=9.
[12] United States Sentencing Commission (2017), Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System, https://www.ussc.gov/research/research-reports/2017-overview-mandatory-minimum-penalties-federal-criminal-justice-system.
[13] Substance Abuse and Mental Health Services Administration (2019), Results from the 2018 national survey on drug use and health: Detailed tables, https://www.samhsa.gov/data/sites/default/files/cbhsq-reports/NSDUHDetailedTabs2018R2/NSDUHDetailedTabs2018.pdf; United States Sentencing Commission (2017), Quick Facts: Federal Drug Trafficking Offenses in 2016, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Quick_Facts_Drug_Trafficking_2016.pdf.
[14] Weiss, D (2017), ABA House backs ban on mandatory minimums, https://www.abajournal.com/news/article/aba_house_backs_ban_on_mandatory_minimums_prosecutor_discretion_in_sentenci#google_vignette; American Law Institute (2017). Model Penal Code: Sentencing, Proposed Final Draft (approved May 2017), https://robinainstitute.umn.edu/publications/model-penal-code-sentencing-proposed-final-draft-approved-may-2017; NAACP (2010). Resolution: Seeking Abolishment or Repeal of "Mandatory Minimum Sentencing." https://naacp.org/resources/seeking-abolishment-or-repeal-mandatory-minimum-sentencing#:~:text=BE%20IT%20FINALLY%20RESOLVED%2C%20that,federal%20Mandatory%20Minimum%20sentencing%20statues.
[15] Nellis, A. (2024), How Mandatory Minimums Perpetuate Mass Incarceration and What to Do About It, The Sentencing Project, https://www.sentencingproject.org/app/uploads/2024/01/How-Mandatory-Minimums-Perpetuate-Mass-Incarceration-and-What-to-Do-About-It.pdf.
[16] Ghandnoosh, N. (2017), Opioids: Treating an Illness, Ending a War. The Sentencing Project, https://www.sentencingproject.org/reports/opioids-treating-an-illness-ending-a-war/.
[17] Pew Trusts (2016), Voters Want Big Changes in Federal Sentencing, Prison System, https://www.pewtrusts.org/en/research-and-analysis/articles/2016/02/12/voters-want-changes-in-federal-sentencing-prison-system.