Legislation authored by House Judiciary Chairman Bob Goodlatte (R-VA) and ranking member John Conyers (D-MI), that includes an expanded penalty for heroin containing fentanyl, is now supported by 11 members of the Congressional Black Caucus.
Reps. Sheila Jackson Lee (D-TX), Frederica Wilson (D-FL), Karen Bass (D-CA), Eddie Bernice Johnson (D-TX), Al Green (D-TX), Bobby Rush (D-IL), Keith Ellison (D-MN), Corrine Brown (D-FL), Danny Davis (D-IL), and Lacy Clay (D-MO) are all co-sponsors of the bill as of last Thursday. Several members were unaware of the provision.
The bill, H.R. 3713, the Sentencing and Reform Act, was introduced on October 8. The legislation is a companion to a Senate bill authored by Senate Judiciary Chairman Chuck Grassley (R-IA). There has been a major spike in heroin use over the last eight years. In small quantities, heroin is now cheaper than crack cocaine.
Though the media is focused on heroin as a drug used by young users in the 20s, some sentencing advocates are focused on who is more likely to be prosecuted for possession and trafficking, pointing out African Americans are over-represented.
“According to Baltimore Health Department figures, 39 people died from fentanyl-linked overdoses in the first quarter of 2015, compared with 14 at the same point last year. There were 303 overdose deaths in Baltimore in 2014,” reported WBAL TV11 on July 6, 2015.
Conversations with members of Congress, staff, the U.S. Sentencing Commission, and advocates reveal a lack of clear data on how much the legislation might decrease or increase the federal prison population or whether it will save or waste money.
H.R. 3713 contains what may be an expensive new penalty for heroin containing fentanyl. The proposal would give judges the option of adding five years of prison time for fentanyl laced heroin trafficking. Though no federal data has been collected specifically regarding heroin-fentanyl, there were 2,431 defendants in 2014 who received at least one year in federal prison for a heroin related offense. Under H.R. 3713, the five years may not be served concurrent with any other charge.
There are several heroin related mandatory minimums already on the books: 591 received a 5-year mandatory sentence and 597 received a 10-year mandatory sentence in 2014. At 2,000 prisoners at an expense of $29,291 per prisoner, the cost would be $58.5 million for one year of federal imprisonment.
In March 2015, the Drug Enforcement Agency put out a nationwide alert for fentanyl–heroin. The alert stated that it’s common that heroin contains fentanyl, which could mean new fentanyl specific penalties could spike prison time and incarceration costs.
“Every person involved in a federal heroin case can face extremely long prison sentences, even if their personal involvement is very minor, or even if they have never met or don’t know anyone else involved in the conspiracy,” defense attorney Jerod Gunsberg, whose practice specifically focuses on federal heroin prosecutions.
The legislation also features reductions to mandatory minimum sentences but lengthy lists of exceptions regarding who may benefit from them. With all the exceptions it’s difficult to predict how the bill would reduce federal incarceration. An after average of 5,900 more defendants enter federal prison each year according to CRS.
A statement from Molly Gill of FAMM indicates that the bill limits the scope of who may seek sentence adjustments. “Limited retroactivity isn’t fair or right, and it also will not help cut prison costs and save money for law enforcement, who need those funds to prevent crime and restore victims,” Gill added.