USSC Holds Hearing on Tightening Fentanyl, Synthetic Weed Sentences

Proposed amendments would increase penalties for manmade drugs

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The United States Sentencing Commission, the federal body responsible for recommending guidelines for federal judges' criminal sentencing, held a hearing Wednesday to discuss increasing the penalties offenders would face for trafficking in synthetic drugs, including the highly deadly opioid fentanyl.

As discussed at a past USSC hearing, synthetic drugs are an emerging challenge for law enforcement. Often easier and cheaper to produce than their organic counterparts, synthetic opioids, marijuana, and other drugs have been an increasing feature of drug markets in recent years. These drugs are often more dangerous than their organic equivalents, with higher potencies leading to more overdoses and deaths.

Speaking before the Commission, Keith M. Graves, a representative of the National Narcotics Officers Association, emphasized synthetic drugs represent a new and unique problem for law enforcement officers across the country.

"These synthetic drugs cannot be combatted like traditional street drugs of the past. Law enforcement officers around the country are having to change their tactics due to the strength and potency of not only fentanyl, but of synthetic cathinones and synthetic cannabinoids," he said.

The amendments, originally released in January, would update the federal sentencing guidelines in three key ways. Perhaps most importantly, part C of the amendment would increase the guideline penalties for offenses involving fentanyl. Deaths from synthetic opioids like fentanyl have spiked over the past five years, as has the volume of the deadly drug crossing the border into the United States.

Noting "commenters have argued that [current guidelines do] not adequately reflect the serious dangers posed by fentanyl and its analogues, including their high potential for abuse and addiction," the Sentencing Commission proposes to increase fentanyl offense sentences in line with those currently imposed on fentanyl analogues.

Additionally, the amendments would introduce a sentencing enhancement (which modifies a standard guideline sentence) for the sale of fentanyl misrepresented as another substance. This would include fentanyl mixed with heroin or other drugs, or fentanyl pressed into pill form and then sold as oxycodone or hydrocodone.

In addition to the fentanyl sentencing modifications, the USSC is also proposing modifications to current sentencing rules to include two other synthetic drug classes in federal guidelines. Synthetic cathinones, also known as bath salts, are only partially included under current sentencing guidelines; the same is true of synthetic cannabinoids, which have the same active ingredient as marijuana, but have been shown to have increased toxicity and adverse side effects, including possible death. Under the proposed amendments, the full slate of synthetic cathinone and cannabinoids would be specifically covered by guidelines, each as their own class with standard offense levels associated.

Speaking on behalf of the Department of Justice, U.S. Attorney Robert M. Duncan Jr. applauded the USSC’s proposed guidelines, which he said would "conserve scarce judicial resources while promoting consistency and uniformity in sentencing." Duncan especially emphasized the threat posed by synthetic opioids like fentanyl, just two milligrams of which can be lethal—a fact that Duncan knows all too well.

"The Eastern District of Kentucky where I serve as the United States Attorney has been one of the hardest hit by the crisis. On a daily basis, I see the death and destruction caused by fentanyl and fentanyl analogues," he said.

The Justice Department supports all of the fentanyl, synthetic cathinone, and synthetic cannabinoid amendments, according to Duncan. However, not all of those who testified before the USSC were similarly inclined.

Kevin L. Butler, speaking on behalf of federal public defenders, argued current guidelines provide sufficiently high penalties, noting that in general individuals facing fentanyl charges do not receive above-guideline sentences under the current regime. Butler cited the historical harshness of crack cocaine sentencing, only fixed in 2010, as an example of public officials instituting overly lengthy sentences in response to a drug crisis.

"The public frenzy over crack cocaine in the 1980s resulted in hasty political measures that produced gross disparities in sentencing and disproportionately affected minorities. There is a real danger of repeating those mistakes today given the current attention on fentanyl," Butler said.

The impact of drug offenses on the federal populations has been a focus of the Sentencing Commission before. A report released by the Commission last year found that around half of all federal drug offenders recidivate within two years of offending; another found the use of mandatory minimums at the federal level has declined since 2010.

The hearing did not discuss the impact of the proposed amendments on the overall federal inmate population, which makes up about nine percent of all those incarcerated in the United States. Drug trafficking is the most common offense dealt with by the federal system, making up around 30 percent of all offenses. 

Charles Fain Lehman

Charles Fain Lehman   Email Charles | Full Bio | RSS
Charles Fain Lehman is a staff writer for the Washington Free Beacon. He writes about policy, covering crime, law, drugs, immigration, and social issues. Reach him on twitter (@CharlesFLehman) or by email at lehman@freebeacon.com.

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