Senate considers harsh fentanyl sentences, but will they work?

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Criminal justice reformers were alarmed last month when Attorney General Jeff Sessions announced a return to the policy of seeking harsh, mandatory minimum sentences for drug offenses. His announcement reversed an Obama-era policy of limiting mandatory minimums for low-level, nonviolent marijuana offenders. That policy had been put in place, in part, in response to several states having legalized marijuana for either medical or recreational purposes. Even more states have legalized marijuana now.

As we discussed on this blog last month, Obama's policy was also meant to reduce mass incarceration. Mandatory minimum drug sentences, especially for simple possession, are thought to be filling our jails with non-dangerous people at great cost to them, their families, and the taxpayer.

With the advent of the opioid crisis, however, both state and federal lawmakers have struggled against the urge to clamp down further. In April, the Florida House made clear that fentanyl trafficking could be considered manslaughter if the drug results in a death. More recently, however, the U.S. Senate has been considering harsh new mandatory-minimum sentences for dealing in fentanyl or other synthetic opioids.

Is drug abuse a public health crisis or an issue for law enforcement?

According to NPR, even known reformers like senators Chuck Grassley (R-Iowa) and Dianne Feinstein (D-Calif.) have gotten on the mandatory minimums bandwagon, at least in regards to synthetic opioids like fentanyl. A bill currently under consideration would assign a 10-year sentence to a first offense of selling synthetic opioids, and that sentence would double for a second or subsequent offense.

It's clear that fentanyl and other synthetic opioids are very dangerous. A deputy U.S. attorney general has just warned law enforcement that mere exposure to the drugs can cause overdoses. Moreover, drug overdose is currently the leading cause of death for Americans under 50. It's an epidemic, no question about it.

Yet the Drug Policy Alliance and other reform groups point out that past experience has shown tough sentences to be ineffective. "We've been here before with this approach in terms of the war on drugs and ramping up sentences," notes their spokesperson, "and we know that escalating sentences ... does nothing to help the opioid epidemic."

Indeed, a report by the Prison Policy Initiative just identified the most effective tactics for reducing mass incarceration in America: court drug diversion programs and drug treatment grants for states.

Mass incarceration and the opioid crisis are different issues, but our experience with the War on Drugs generally should inform our policy decisions now. What we know is that long sentences do not appear to deter drug abuse -- but they do fill up our prisons.

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