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Marketing Fentanyl as Heroin May Soon Carry Harsh New Penalties

Federal prosecutors didn't need more leverage against drug offenders, but they're going to get it anyway.

Dr. Ian Garber uses an infrared spectrometer to test heroin that was bought on the street by activist Dean Wilson for testing purposes, for fentanyl during a demonstration at the supervised consumption site at Powell Street Getaway in the Downtown Eastside of Vancouver, B.C. Credit: Darryl Dyck/ZUMA Press/NewscomDr. Ian Garber uses an infrared spectrometer to test heroin that was bought on the street by activist Dean Wilson for testing purposes, for fentanyl during a demonstration at the supervised consumption site at Powell Street Getaway in the Downtown Eastside of Vancouver, B.C. Credit: Darryl Dyck/ZUMA Press/NewscomIn response to the current panic over illicit fentanyl, a change to federal sentencing policy could dramatically increase the prison sentences of people who sell the drug mixed into heroin and other substances—whether they know that's what they're selling or not.

The U.S. Sentencing Commission (USSC) voted this week to increase federal prison sentences for drug offenders who market fentanyl or a fentanyl analog as a different drug. The new penalty is part of a raft of amendments to the Federal Sentencing Guidelines, which the USSC will send to Congress later this month for approval. Federal judges use these guidelines to calculate sentence lengths for convicted defendants. The new amendments will go into effect on November 1, 2018, unless Congress vetoes them.

While law professor Doug Berman, who blogs at Sentencing Law and Policy, writes that the amendments voted on this week are "fairly minor," I think he's underestimating the impact of the new fentanyl amendment. Here's the new guideline language from the USSC:

Part C of the proposed amendment would add a new specific offense characteristic at §2D1.1(b)(13) providing a 4-level enhancement to address these cases. The enhancement would apply if the defendant knowingly misrepresented or knowingly marketed as another substance a mixture or substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl )-4- piperidinyl] propanamide) or a fentanyl analogue.

Here's a plain-English example based on the 2016 sentencing table and the 2016 guidelines manual: An offender with little or no criminal history whose case involved between four and eight grams of fentanyl would be assigned level 15, for which the recommended sentence length is 18 to 24 months. Under this intent-to-deceive amendment, the person could be moved to level 19, where they'd face 30 to 37 months.

That's a huge difference, and it's based on the assumption that drugs are being mixed intentionally, that every person on the supply side of the equation knows exactly what they're passing along to the next person in the supply chain, and that street-level dealers are knowingly trying to deceive (and thus kill) their customers. Yet the USSC doesn't bother to say how frequently this enhancement might be used, in what kinds of cases, or even whether they think this enhancement will have a deterrent effect. The commission's justification:

The Commission has received comment that fentanyl and fentanyl analogues are being mixed with, and in some instances substituted for, other drugs, such as heroin and cocaine. According to commenters, fentanyl and fentanyl analogues are also being pressed into pills that resemble prescription opioids, such as oxycodone and hydrocodone. Commenters have also suggested that the harms associated with the use of fentanyl and fentanyl analogues are heightened by the fact that users may unknowingly consume fentanyl or fentanyl analogues in products misrepresented or sold as other substances, such as heroin or counterfeit prescription pills.

Illicit drug sellers are not chemical manufacturers or pharmacists. They don't use mass spectrometers. The fentanyl contamination issue is real and deadly, and that means someone, somewhere in the supply chain is being either sloppy, or intentionally cutting fentanyl (which is cheap) into diluted heroin in order to preserve potency. But it borders on the absurd to create a fraud penalty for vendors who are breaking the law regardless of how they market their products. Besides, it's not like fentanyl is the only thing you can introduce into an illicit drug mixture to make it more dangerous. Is the commission going to create a special enhancement for misrepresenting rat poison? Will it also be four levels, or only three? And what about a downard departure for people who cut heroin with powdered sugar, thereby diluting the potency?

The counterargument is that defendants can simply claim ignorance of what they sold. But prosecutors don't have to convince juries of misrepresentation, because 97 percent off federal drug cases conclude in a plea deal. It's much easier to imagine this enhancement being used as a cudgel to flip suspects and keep cases from going to trial. Consider the street-level cocaine vendor who sells someone a gram of coke that contains a small amount of fentanyl. The dealer doesn't know about the contamination, and so doesn't warn his customer. The customer (or a friend) overdoses from the fentanyl and dies, and the cocaine dealer is tracked down and charged with selling fentanyl. During plea negotiations, prosecutors can simply bring up the enhancement's existence (along with numerous others) as a sweating technique in order to get the defendant to plea to a shorter (but still long) sentence, and/or work as a confidential informant.

Prosecutors are pretty good at that already. This enhancement is just running up the score.

Photo Credit: Darryl Dyck/ZUMA Press/Newscom

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  • DajjaI||

    But sentencing reforms are good. My tobacconist explained it to me.

  • Scarecrow Repair & Chippering||

    Then you are running an intelligence deficit with your tobacconist.

  • Elias Fakaname||

    'Tobacconist', eh? Not buying it.

    WHERE ARE THE FILLINGS?

  • Mrs. Premise||

    That was actually a bookseller. The tobacconist was featured in the Hungarian-English phrasebook sketch. But thanks for reminding me of Lemming of the BDA.
    "I hear the gooseberries are doing well this year, and so are the mangoes." Wink, wink.

  • Ken Shultz||

    Two things to learn from this (and the drug war generally):

    1) No sentence can ever be so harsh that it will stop people from obtaining these drugs or becoming addicts.

    2) There is no policy so expensive, destructive, and futile that the government won't persist in it for decades.

  • SQRLSY One||

    I also think that marketing the love of freedom, individual liberties, and the love of libertarians and the love of the Libertarian Party, being a FALSE love, being FAKE news, and being FALSE consciousness, should be SEVERELY punished, as opposed to spreading the TRUTH, which is that Government Almighty LOVES us ALL, deeply, sincetely and TRULY!!!

  • SQRLSY One||

    As a pubic service, I will now bring us back to NON-fake news, and REAL consciousness...

    Scienfoology Song… GAWD = Government Almighty's Wrath Delivers

    Government loves me, This I know,
    For the Government tells me so,
    Little ones to GAWD belong,
    We are weak, but GAWD is strong!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    My Nannies tell me so!

    GAWD does love me, yes indeed,
    Keeps me safe, and gives me feed,
    Shelters me from bad drugs and weed,
    And gives me all that I might need!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    My Nannies tell me so!

    DEA, CIA, KGB,
    Our protectors, they will be,
    FBI, TSA, and FDA,
    With us, astride us, in every way!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    My Nannies tell me so!

  • Rich||

    97 percent off federal drug cases conclude in a plea deal.

    Rule of Law, bitches!

  • Eidde||

    You mean that 3% of these obviously-guilty people waste taxpaper money and time by insisting on trials?

  • Don't look at me.||

    So ungrateful.

  • Don't look at me.||

    Weak willed Congress will never end the drug war until they impose mandatory death penalty for drug use or selling or even looking. Anything less for punishment shows they just aren't serious, right.

  • SIV||

    As I mentioned on a previous post's comments Reason is, across-the-board, fully in favor of fraud.
    Fraudulent meat
    Fraudulent mayonaisse
    Fraudulent heroin

    Y'all don't have the best of records on force and coercion either.

  • Sevo||

    Y'all don't have the best of records on brains.
    Fuck off.

  • ThomasD||

    If you are selling something you know, or at least reasonably expect the customer to ingest, then yes you should have some idea that it really is what you say it is.

    If it doesn't, and people die because of that then yes, you should bear the consequences.

    But do note that the 'because of that' is an issue for a jury.

    The flip side of this law is that it might be nothing more than a PSA suggesting that people be a little more wary about injecting something you bought from some guy on the street, a guy who most certainly is not using his real name.

    Because that is just fucking stupid.

  • Brendan||

    Indeed.

    The easiest way to avoid this is to not sell heroin.

  • I am the 0.000000013%||

    The answer to any sort of need for a customer to be assured of quality is for the producer to contract with a private for-profit certification company that will certify the product is good.

    If the government has any role whatsoever in this process, it would be to protect reviewers of the product, the producer, or the certification company from lawsuits so that there is a transparent, competitive, and free market.

    The FDA is serving all sorts of masters, and when they fail they always claim it's because of funding, meaning they get paid more when they fail.

    Private companies scale to meet demands. The FDA is a monopoly that can't scale.

  • creech||

    Thank God; finally the one tool the Feds have needed to finally win this hundred year old War on Drugs

  • I am the 0.000000013%||

    Yes. I can't wait for the peace dividend to show up in my taxes!

  • MSimon||

    Addiction is a symptom of PTSD. Look it up.

    Dr. Lonny Shavelson found that 70% of female heroin addicts were sexually abused in childhood.

    Not even Reason writes about this.

  • DJK||

    One-off studies aren't very good evidence. Show me the meta-analysis or GTFO.

  • Flinch||

    Most recreational use is a form of escapism: be it boredom or pain. I can see PTSD being a trigger event, but not causal and I discard the automatic connection. More to the point, needle junkies are generally on a slow motion suicide trip, but have enough humanity left to not go to definitive measures guaranteed to work the same day it's tried. Did you miss Tommy Lasorda years ago with his observation? It went something like: "addiction is not a disease... it's a weakness" [speaking of Steve Howe's epic problems with cocaine]. One of the best observations to ever air on TV from an average guy.
    The crux of the matter [basic humanity] is this: we all have a need for love and acceptance. When it's missing, or gets crushed, people sometimes take to drugs. To that end, the mindless argument of "peer pressure" needs to find the rubbish bin, and be replaced with "peer vacuum". Dopers are instant friends, and gone just as quick.
    Got a drug problem? Get new friends. Now, that's pretty scary stuff for anyone dealing with a bunch of pain, and a chemical setting your schedule for you.

  • Verbum Vincet||

    Kind of reminds me of the disparity in the crack vs. powder cocaine sentencing enhancements of the 80s and 90s. I'd venture to say that, if given knowledge of the contents of their purchase, incorrigible opioid addicts would avoid fentanyl. Still, with enough government control and harsh enough punishment, a perfect world can be realized!

    It's amazing that since the feds turned control of the liquor industry back over to reputable companies, we don't see people dying from methanol-laced whiskey. We don't see bootleggers murdering each other, and we don't see organized crime infiltrating the police (at least alcohol-wise.) There's a lesson or three in there somewhere!

  • MSimon||

    Conservatives are immune to history. This was explained a long time ago.

    The whole modern world has divided itself into Conservatives and Progressives. The business of Progressives is to go on making mistakes. The business of Conservatives is to prevent mistakes from being corrected. Even when the revolutionist might himself repent of his revolution, the traditionalist is already defending it as part of his tradition. Thus we have two great types -- the advanced person who rushes us into ruin, and the retrospective person who admires the ruins. He admires them especially by moonlight, not to say moonshine. Each new blunder of the progressive or prig becomes instantly a legend of immemorial antiquity for the snob. This is called the balance, or mutual check, in our Constitution. — G.K. Chesterton

  • I am the 0.000000013%||

    Wasn't Chesterton British? And aren't the conservative and progressive labels somewhat reversed in Britain from the USA? Regardless, progressive and conservative mean nothing anymore without some modifier. 'Social conservative', 'Fiscal liberal', etc...

  • Flinch||

    Sounds like the feds are trying to apply labeling laws to... the black market. The next thing I suppose is they will demand black marketeers become ISO 9001 certified? Whoever cooked up this recommendation not only needs to be dismissed from government service, but have their mental competency adjudicated if they want to keep their drivers licence. This level of stupidity is flat out dangerous: it may appear like busy work to the casual observer, but how many more laws do we need before somebody steps to SCOTUS citing force majeure regarding a charged offense and cites... the whole body of now unknowable federal law. If it's not discoverable... it can't be followed, and judges who want to make an "ignorance of the law is no excuse" philosophy statement should be told to put up or shut up: face a panel for 100 questions, and if just one answer is wrong, they are thrown off the bench that day. No time outs/bathroom breaks/recesses/consultations reference materials or electronic devices allowed.

  • ragnar_rahl||

    How exactly would sloppiness get fentanyl in your heroin? Heroin is a few steps removed from the opium, an agricultural product. Cook in lime to get morphine, boil with acetic anhydride to get impure heroin, draw off impurities with water and chloroform, toss in some sodium carbonate to precipitate the heroin into solids, filter with activated charcoal and ethanol, stir with a little ether, water, and a few drops of hcl solution. All but the last step could be a high school chemistry experiment if it weren't illegal (last step is dangerous). And you have heroin after the "boil with acetic anhydride" part it's just really impure.

    Fentanyl is entirely synthetic. You don't go find an agricultural product, you just get a bunch of already--pure chemicals and go through a much more complicated set of reactions to get it. Nothing used in the process of making heroin, or the extra steps used to make the product portable, gets you fentanyl.

    Nobody who has both a fentanyl business and a heroin business is going to be "sloppy" in mixing them. It's deliberate.

    Granted, the lack of mens rea for unwitting middlemen thing is a big issue. But, aside from that:

    Selling heroin should be legal. Selling fentanyl should be legal. Selling heroin, knowing and not saying that it is cut with fentanyl, should get you the death penalty.

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