Rejecting the Ayotte Amendments: Understanding Current Punishments for Fentanyl & Heroin

UPDATE: Thanks to over 1,600 FAMM members who took wrote to their lawmakers, the proposed amendment to the defense authorizations bill never came up for a vote. The defense bill passed on June 14, 2016 without the sentencing increases included.

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Tell the U.S. Senate: Repeal mandatory minimum sentences, don’t make them worse!

U.S. Senator Kelly Ayotte (R-NH) is attempting to add amendments to S. 2943, the National Defense Authorization Act for 2017, that would dramatically worsen mandatory minimum sentences for fentanyl offenses. The amendments, S. Amdts. 4082 and 4083, if passed by Congress, would incarcerate low-level users, addicts, and small-quantity sellers for 5, 10, 20 years, or even life without parole for as little as 0.5 grams of any substance containing trace amounts of fentanyl.

FAMM opposes these amendments and urges all members of Congress to vote “no” on S. Amdts. 4082 and 4083. The Ayotte amendments do not solve America’s heroin crisis and would not stop or deter the addition of fentanyl to heroin and other drugs. They would

  • Increase prison populations and costs for taxpayers without increasing public safety
  • Give users and addicts unjust and ineffective prison terms that don’t help them achieve sobriety
  • Be a step backwards in America’s public health approach to drug crime and to the growing bipartisan efforts to reform drug sentencing laws.

Below, we explain what the Ayotte amendments do and why they do not make Americans safer or solve America’s opioid problems.

Mandatory minimum sentences have done nothing to stop the heroin epidemic.

  • Mandatory minimum sentences have existed for heroin and fentanyl since 1986.
  • These sentences have done nothing to prevent our current heroin and fentanyl problems. Making fentanyl sentences harsher will not make the opioid epidemic disappear.

Fentanyl punishments are already harsher than those for heroin, and neither is evidence-based.

  • Current law already requires far less fentanyl than heroin to trigger the mandatory minimum sentences in 21 U.S.C. § 841.
  • The drug quantities in § 841 were not based on science or expert testimony, but were picked at random by politicians in 1986, to sound “tough” weeks before a major election.

Current mandatory minimums for fentanyl and heroin are triggered by the amount of the entire mixture or substance, not the purity of the drug.

  • Highly impure quantities of substances containing fentanyl already carry stiff mandatory minimum sentences.
    • Example: 399 grams of baking soda mixed with 1 gram of fentanyl requires a 10-year mandatory minimum term.

The Ayotte amendment would make the fentanyl amounts so small that they would subject users and addicts to sentences that should be reserved for high-level traffickers.

  • Under the Ayotte amendments, a mere 0.5, 2, 5, or 20 grams of a substance containing trace amounts of fentanyl or an analogue of fentanyl would trigger the 5-year or 10-year mandatory minimum terms.
  • These small amounts are likely to be personal use and possession quantities, not trafficking quantities, and do not merit federal prosecution.
  • Again, purity of the drug does not matter. Miniscule amounts of fentanyl would still trigger long mandatory minimum prison terms:
    • Example: 0.45 grams of baking soda mixed with 0.05 grams of an analogue of fentanyl would trigger a 5-year mandatory minimum prison term.
    • Example: 1.9 grams of baking soda mixed with 0.1 grams of fentanyl would trigger a 5-year mandatory minimum prison term.
    • Example: 4.99 grams of baking powder mixed with 0.01 grams of fentanyl would trigger a 10-year mandatory minimum prison term.

The Ayotte amendments would not deter drug crime because most users and sellers do not even know when their drugs include fentanyl.

  • Fentanyl is typically added as a booster to other kinds of drugs, like heroin, before it even enters the United States – by the time the drugs get to users or sellers, they do not usually even know fentanyl has been added.
  • If people do not know whether drugs include fentanyl, harsher sentences for fentanyl will not deter them from using or selling those drugs.
  • Experts have found that making punishments harsher does not deter crime. Making it more likely that a person will be caught and swiftly punished, however, does.
  • The money spent on the excessive sentences in the Ayotte amendments would be better spent on drug abuse prevention and treatment and smarter international drug enforcement.

The Ayotte amendments would punish tiny amounts of fentanyl more harshly than larger amounts of heroin, powder cocaine, crack cocaine, PCP, and methamphetamine.

  • Example: 4.9 grams of baking soda mixed with 0.1 grams of an analogue of fentanyl would, under the Ayotte amendments, merit the same 10-year mandatory minimum sentence as
    • 50 grams of pure methamphetamine
    • 100 grams of pure PCP
    • 280 grams of pure crack cocaine
    • 5,000 grams of pure powder cocaine, and
    • 1,000 grams of pure heroin.

What the Ayotte Amendments Would Do

Mandatory Minimum Sentence
 (18 U.S.C. § 841(b))
Current Heroin Amount Current Fentanyl Amount Ayotte Amendments
Fentanyl Amount
5 YEARS

  • becomes 10 YEARS if person has a prior drug conviction
  • becomes 20 YEARS if death or serious bodily injury result from use of the drugs
100+ grams of a mixture or substance containing a detectable amount of heroin  40+ grams of a mixture or substance containing a detectable amount of fentanyl

OR

10+ grams of a mixture or substance containing a detectable amount of an analogue of fentanyl 

2+ grams of a mixture or substance containing a detectable amount of fentanyl 

OR

0.5+ grams of a mixture or substance containing a detectable amount of an analogue of fentanyl

10 YEARS

  • becomes 20 YEARS if person has a prior drug offense
  • becomes 20 YEARS if death or serious bodily injury result from use of the drugs
  • becomes LIFE WITHOUT PAROLE if person has 2 or more prior drug convictions
1,000+ grams of a mixture or substance containing a detectable amount of heroin 400+ grams of a mixture or substance containing a detectable amount of fentanyl

OR

100+ grams of a mixture or substance containing a detectable amount of an analogue of fentanyl

20+ grams of a mixture or substance containing a detectable amount of fentanyl

OR

5+ grams of a mixture or substance containing a detectable amount of an analogue of fentanyl