Opioid Panic Infects Defense Spending Bill

New Hampshire senator wants to increase federal penalties.


Kelly Ayotte
Public Domain / United States Senate

All those libertarians in New Hampshire need to get to work. One of their senators is attempting to actually increase federal drug penalties.

New Hampshire Republican Sen. Kelly Ayotte is attempting to amend the National Defense Authorization Act (the military spending bill) to reduce the threshold by which mandatory minimum penalties are triggered for possession of opioid drugs like fentanyl, which has been blamed for Prince's recent death.

Ayotte and her office are selling these amendments as targeting traffickers. From Roll Call:

"Though the DEA estimates that fentanyl is up to 50 times more powerful than heroin, the penalties for trafficking in the two drugs are significantly different," said Chloe Rockow, Ayotte's spokeswoman. "With support from New Hampshire law enforcement, Senator Ayotte introduced legislation — and this amendment — to ensure that the penalty for trafficking in fentanyl reflects the deadliness of that substance."

But this argument is a little strange, because what the amendments actually do is seriously decrease the amount of drugs a person must have on them in order to trigger a five- or 10-year mandatory minimum sentence. While the law being amended is specifically focused on punishment for possession of drugs with intent "manufacture, distribute, or dispense," 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. This is not an amendment about finding new ways to catch drug kingpins.

And also, despite these claims that opioids are so much more powerful than heroin, Jacob Sullum recently noted that the rise in deaths related to opioid overdoses are not quite how they appear:

Despite the decline in use, opioid-related deaths reported by the U.S. Centers for Disease Control and Prevention (CDC) continued to rise through 2014, when there were 29,467, a record number. An overwhelming majority of such deaths—more than nine out of 10, according to data from New York City—involve mixtures of opioids with other drugs rather than straightforward overdoses.

That pattern, illustrated by the untimely ends of celebrities ranging from Janis Joplin to Philip Seymour Hoffman, suggests that the most effective way to prevent opioid-related deaths is to discourage people from combining painkillers or heroin with other drugs, especially depressants such as alcohol and benzodiazepines. It also suggests that the inherent deadliness of opioids has been greatly exaggerated.

And Ayotte's amendments aren't the only effort to transform opioid panic into new federal punishments. The Sentencing Reform Corrections Act, which is intended to reduce the number of people in federal prison given mandatory minimum sentences for drug-related crimes, also has a new addition that enhances the sentences by up to five years for drug crimes related to the opioid fentanyl.