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Sen. Kelly Ayotte (R-N.H.) has offered amendments to S.2943, the FY 2017 National Defense Authorization Act (NDAA), that would make federal mandatory minimum sentences for fentanyl offenses harsher. Fentanyl is a highly addictive and powerful synthetic narcotic used in hospitals to treat severe pain. It is also used to cut heroin or substituted as heroin, which is leading to drug overdoses in New England.
The heroin epidemic was highlighted in ahead of Republican and Democratic presidential debates and primaries in New Hampshire. When talking about this issue, Carly Fiorina, for example, somberly discussed the tragic death of her daughter, who battled alcohol and drug addiction. "Drug addiction shouldn’t be criminalized," Fiorina said. "We need to treat it appropriately."
Fiorina is, of course, right. We should be treating drug addiction, as states including Texas and Georgia have done, through drug courts and diversion programs. These programs are cheaper and more cost-effective than lengthy mandatory minimum sentences.
Unfortunately, the Ayotte amendments, S.Amdt.4082 and S.Amdt.4083, would make simple possession of 0.5 grams of illicit drugs laced with fentanyl subject to 5-year mandatory minimum sentences in federal prison. Larger amounts would trigger longer sentences, which are harsher than carrying more substantial quantities of meth, crack cocaine, or pure heroin.
The Ayotte amendments, which could be considered as soon as next week, are concerning because it would result in the incarceration of drug addicts in federal prison, leading to a higher prison population and associated costs to taxpayers. The amendments also do not take into account that fentanyl is often added to heroin by drug cartels in Mexico before being smuggled to the United States.
Dealers and users are not aware that they drugs they carry are laced with fentanyl. In fact, a June 2014 Boston Globe story quoted a Drug Enforcement Administration (DEA) official who noted that "[n]early all the heroin that has plagued New England with fatal overdoses in recent months is produced in Colombia and shipped to Mexico, where authorities believe drug cartels add the painkiller fentanyl to make a potent combination destined for the United States." The official said that there is little evidence that points to fentanyl being added to heroin after it reaches the United States.
The argument supporters of the amendments will make is that harsher sentences are needed to deter people from buying and using heroin. To say this is to misunderstand the mentality of a drug addict, who continues to use because of a chemical dependence, which is why treating the underlying problem is more important than putting them in federal prison. People who engage in criminal behavior, like drug use, are not deterred by harsh penalties. They commit crimes because of addiction and the chances that they will not be caught. Moreover, harsh penalties for heroin have been in existence since 1986, and yet, usage of the illicit drug has only grown. There is very little reason to believe that harsher penalties will deter use.
The concern about the heroin epidemic is understandable and certainly should be addressed. The Ayotte amendments are simply the wrong way to do it. Better and smarter ways to substantively address the issue are making more drug treatment options available to addicts, rather than incarcerating them, and stepping up enforcement against the international drug trade.