We have a growing fentanyl problem so let’s not repeat past mistakes

Winston Churchill’s warning that those who fail to learn from history are condemned to repeat it, is one that we continually ignore when responding to the latest drug-related crisis. We are on the verge of doing so again in responding to the current fentanyl crisis.

The sharp rise in fentanyl-related overdoses and deaths has put lawmakers under immense pressure to do something. But as we seek solutions, we should remember and learn from our response to the crack epidemic of the 1980s, and the collateral consequences that followed, many of which we are still grappling with today. 

The rapid spread of crack during the 1980s heightened the nationwide concern about drugs. When college basketball phenomenon Len Bias died of a cocaine overdose (many mistakenly believed that crack was the drug involved), the concern turned into a frenzy. 

Within months of Bias’s death, Congress passed the Anti-Drug Abuse Act of 1986, which set up the current regime of mandatory minimum sentences for drug trafficking offenses. The goal, according to the United States Sentencing Commission, was to target “serious” drug traffickers with five-year mandatory minimum prison sentences, and “major” drug traffickers with ten-year mandatory minimum prison terms. 

Even though it was a sweeping law that transformed a significant sector of the criminal justice system, to meet public pressure Congress abandoned its regular legislating process in passing the 1986 Act — no committee hearings or mark-ups were held, and no committee reports accompanied the final bill. 

Today it is abundantly clear that the 1986 Act and similar state laws have largely failed to reach “major” and “serious” drug traffickers. So many street and low-level drug offenders now fill our jails and prisons that our incarcerated population leads the world. 

This mass incarceration has resulted in devastating collateral consequences, such as family dissolution, community disruption, voter disenfranchisement and stunted education and housing opportunities — particularly for communities of color. 

There are signs that we are yet again embracing the strategy of incarceration to deal with the fentanyl crisis. As a public defender, I watched with alarm at how federal prosecutors responded to growing crisis by using mandatory minimums and other means to insist on harsh sentences for low level distributors of fentanyl-laced heroin, even in the absence of evidence that the offender knew the heroin was laced. The crack-era playbook of hammering lower level dealers had found a new target. 

Congress’s current response to the crisis echoes the 1980s as well. Take for instance the Stopping Overdoses of Fentanyl Analogues Act (SOFA) recently introduced in the Senate by Ron Johnson (R-Wisc.) and championed by Judiciary Committee Chairman Lindsey Graham (R-S.C.). 

According to the Drug Enforcement Agency, SOFA authorizes the DEA to add any substance the agency deems similar to fentanyl to Schedule I of the Controlled Substances Act, the highest restriction that triggers significant sentencing penalties, including mandatory minimums. The DEA admits that this proposed extraordinary grant of authority would allow the agency to unilaterally classify millions to an infinite number of substances as Schedule I fentanyl-analogues. Once classified, federal prosecutors would be empowered to seek stiff fentanyl-based penalties against those charged with distributing the substances without ever having to prove that the substances are similar to fentanyl in form or effect. 

Besides being a dangerous grant of unchecked power to the DEA, SOFA is not needed. Existing federal statutes provide for prosecuting individuals for distributing fentanyl-analogues. These laws contain the logical step of requiring prosecutors to show that the alleged analogue is substantially similar to fentanyl in chemical structure, effect on the body, or that the defendant intended or represented that the substance produced the same bodily effects as fentanyl. Three alternatives that do not present a heavy burden for federal prosecutors. 

We have a growing fentanyl problem. But we do not have a fentanyl prosecution problem. Prosecution and incarceration must be elements of the response, but not the leading elements with treatment, education and incarceration alternatives in the far distance. Legislators must avoid repeating the mistakes of the 1980s and invest in evidence-based approaches to reducing fentanyl deaths that involve prevention and public health and not just sentencing. 

If SOFA is indicative of the approach to come, the results will not be fewer fentanyl overdoses and deaths, but rather overcrowded prisons and the collateral consequences that follow. And similar to the crack-era, the weight of fentanyl punishment will likely fall disproportionately on people of color. According to recent data, already 75 percent of those sentenced for federal fentanyl-related offenses are black or Latino.

We responded to crack with arrest and incarceration and the results were devastating. With fentanyl, we must do better. We can if we learn from the recent past.

Lucius Outlaw III is an associate professor and Supervising Attorney of the Criminal Justice Clinic, Howard University School of Law. Prior to joining the faculty in 2018, he was an assistant federal public defender in Maryland for eight years.