Drug Policy

The Justice Department Wants to Put Small-Time Fentanyl Dealers in Federal Prison

Sessions has dispensed with the myth that federal prison is just for big fish.


Image source: DOJ

If there was any question that Attorney General Jeff Sessions has little patience for treating opioid addiction as a public health issue, a Department of Justice letter to the U.S. Sentencing Commission from July 31 provides some troubling clarity. In addition to asking for longer sentences for immigration and gun offenses, the Department insists that the commissioners change federal sentencing guidelines so "that defendants who distribute seemingly small quantities of fentanyl face prison time."

How small?

Distribution of any amount of fentanyl up to four grams, or one gram of a fentanyl analog, is currently a level 12 offense, punishable by 10-to-16 months in federal prison for people with little to no criminal history, all the way up to 30-to-37 months for someone with considerable criminal history.

But because fentanyl can be lethal in doses as small as two milligrams and because four grams is "sufficient to kill 2,000 persons," according to the DOJ, "a base offense level of 12 is wholly inadequate for a person who has placed that many deadly doses of fentanyl onto our streets."

There are problems with this approach. For one thing, quantity does not equal culpability. Many of the people who move fentanyl-laced heroin at the street level do not know how much fentanyl is contained in the bags they sell. In fact, powdered fentanyl is often marketed as pure heroin or pressed into pills and marketed as some other opioid. That a street level dealer wouldn't exactly know the ratio shouldn't come as a surprise. Fentanyl is imported into the U.S. by the kilogram. As the quantities get smaller, so do the operators.

The other issue is that the street level dealers most likely to sell the smallest amount of fentanyl–intentionally or not–are also the dealers most likely to be fentanyl-laced heroin users themselves. Increasing the sentence lengths at the low end would likely mean imprisoning addicts.

The DOJ knows this. In a footnote, the department points out a rule under consideration by the USSC that would allow level-12 defendants who plead guilty to receive a level reduction that would result in probation in lieu of prison time. That rule is intended to separate small fish from big fish and divert defendants into rehabilitation programs. For the DOJ to cite that rule suggests the department knows imprisoning small-time fentanyl dealers belies its claim that federal prosecutors only target major dealers.

The USSC is an obscure agency in the federal criminal justice system. Commissioners don't try or hear criminal cases and they lack the authority to change federal statutes (such as mandatory minimums). But they nevertheless play a major role in determining sentence lengths by creating sentencing guidelines used by federal judges, probation officers, prosecutors, and public defenders.

Increasing the base offense level for the smallest quantities of fentanyl would undermine the spirit of every reform they've passed in the last decade. What it says about the DOJ is even more troubling: Sessions thinks incarceration can fix this crisis. He's wrong, and poor Americans will continue to pay the price.

NEXT: Unconstitutional State Food, Agriculture Crackdowns Spur Congress to Act

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Why not put everyone in a cage.

    1. I have a better idea. Legalize getting high completely (not just quazi-legal). That way companies can make products designed to get people high, safely. They can sell them and face the legal consequences if they fail to make a safe product.

      Then, instead of fake heroin with fentanyl in it, you could buy actual pure, dose-controlled, sterile heroin. Or something better, that isn’t addictive and wears off after 30 minutes. And you could get it from Walgreens or Target, instead of Manny down on the corner.

      Ha-ha! Just kidding! You can cancel the call for the white coats to come take me away and put me in a cage!

      1. Tsk tsk. You aren’t thinking of the children.

        1. Admitting to that lands you in hail too.

  2. The thing that confuses me about this whole [Insert trendy topic here] Epidemic/Crisis/Panic/Shitstorm is the conflation of opioids and heroin and fentanyl and legal and illegal – as far as I can tell there are several distinct problems but the driver of the panic is the OD’ing. As far as I know, the people OD’ing aren’t OD’ing on prescription fentanyl, they’re heroin addicts unknowingly getting a lethal dose of fentanyl in what they think is their heroin fix. Are there some sort of actual statistics on this? Is OD’ing on prescription painkillers a big problem? Is OD’ing on actual heroin any bigger a problem than it’s ever been? Is fentanyl addiction a new thing that’s causing a lot of inexperienced users to OD?

    It seems to me if the concerns about drug addiction are what they say they are, lethal amounts of fentanyl in the heroin supply is kind of a self-correcting problem, isn’t it? So what’s the problem? We want to save this poor wretched creature’s life by sticking him in a rape cage for a few years, see if that doesn’t improve his life experience? This is some kind of Bond-villain level sadistic cruelty if you ask me.

  3. I’ve always been partial to the suggestion (HT Jeane Kirkpatrick) that an important distinction between authoritarians and totalitarians is that where authoritarians want to control what people do, totalitarians want to control what people think.

    Sessions opiod policy seems somewhere towards the totalitarian side of the spectrum–given that we’re talking about a prescription drug. He doesn’t want to stop people from taking the drug–he doesn’t like why they’re taking it.

    If Sessions ever says that medical marijuana is a slippery slope to recreational legalization, everyone should laugh in his face. “Medical” fentanyl has been legal since 1960, and that slippery slope isn’t stopping him from a crackdown.

    “Because fentanyl can be lethal in doses as small as two milligrams and because four grams is “sufficient to kill 2,000 persons,” according to the DOJ . . . “

    Someone might mention that fentanyl is on the WHO Model List of Essential Medicines, “the medications considered to be most effective and safe to meet the most important needs in a health system”.


  4. I have a few points to put together.

    Point 1

    More than 75% of opioid addicts get their drugs either from a prescription themselves or–for free–from a family member or friend who has a prescription.

    Only about 4% of opioid addicts buy their drugs from a dealer.

    Here’s the data:


    1. Your link doesn’t support your statement. Non-medical use isn’t addiction.

      1. Look again:

        “Table 6.47B ? Source Where Pain Relievers Were Obtained for Most Recent Nonmedical Use among Past Year Users Aged 12 or Older, by Age Group: Percentages, Annual Averages Based on 2011-2012 and 2013-2014”

        Take any age group you want, and they’re more or less the same.

        Start with age 26+

        24.2% get it with a prescription from just one doctor.
        3.6% get it with a prescription from more than one doctor.
        51.8% get it from friend or relative for free–who got it with a prescription.

        That’s about 80% who are getting it for non-medical use.

        If you’re trying to make a distinction between non-medical use, recreational use, and/or addiction, that doesn’t make any difference in the law, to Jeff Sessions, or my analysis.

        Sessions is battling opioid addiction, non-medical use, recreational use (or whatever other name you want to call it), and the point is that as far as we know, some 75%+ of these people aren’t even getting their drugs from the black market. They’re getting them through a prescription.

        For more help on finding the fascinating distinctions between opiod addiction, recreational use, and non-medical use, try this link:


  5. Point 2

    People who make less than $20,000 a year are 3.4 times more likely to become addicted to opioids than someone who earns $50,000 per year.


    Put those stats together, and what do you get?

    Point 1: More than 75% of opioid addicts are getting their opioids with a prescription.


    Point 2: People who qualify for Medicaid are 3.4 times as likely to become opioid addicts

    = The uptick in opioid addiction is almost certainly a function of the ObamaCare Medicaid expansion.

    Persecuting addicts may or may not do anything about people who are already addicted, but if you want to shut the system down that’s creating more and more opioid addicts everyday, shutting down the ObamaCare Medicaid expansion is the way to solve that part of the problem.

  6. the Department insists that the commissioners change federal sentencing guidelines so “that defendants who distribute seemingly small quantities of fentanyl face prison time.”

    Given Sessions leads the Department, it’s strange those defendants don’t face the death penalty.

  7. What it says about the DOJ is even more troubling: Sessions thinks incarceration can fix this crisis

    You give these people too much credit. They don’t believe incarceration can fix this. They believe that this crisis gives them an opportunity to increase their own power and wealth – if they *do something*. And incarceration is always a favorite with the people they depend upon for their positions.

    They’re *monsters*. Plain and simple. If there’s a ‘crisis’ its *because they created it* by doing this in the first place. And now they’re going to help themselves by doubling down on these policies.

    People like to say CEO’s are sociopaths. There is nowhere the concentration of sociopaths in the executive suite as compared to the government.

  8. What if Sessions gets stomach cancer, and is forced to go through chemo, radiation, and surgery without any narcs? For surgery he gets an induction drug, ketamine, gas, toradol, and Ofirmev. No benzos, no narcs. Enjoy that k-hole. Enjoy your succinylcholine- we accidentally pushed it before the propofol. Don’t panic; we’ll bag vent you so you don’t die. How do those wide-awake fasciculations feel?

    Your physicians are afraid of being prosecuted if they attempt too generously to ease your suffering. Suffer.

    He gets Zofran or Reglan with chemo. No phenergan- it might get you high. And no marijuana, either.

    Who am I kidding? If Jeff Sessions had cancer, and marijuana eased his pain and improved his appetite, that slimy puke would smoke an ounce a day. Because fuck you, that’s why.

    OT: Sessions looks like Hank Hill’s dad.

  9. very nice post. I like it. Thanks for sharing this information.
    Tinder is the best online chatting application. Try it.
    http://www.tinder-pc-download.com/ tinder for pc
    http://www.tinder-pc-download.com/ tinder download

Please to post comments

Comments are closed.