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."If there was any question that Attorney General Jeff Sessions has little patience for treating opioid addiction as a public health issue,
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.