WASHINGTON — The top federal prosecutor in Vermont is recommending longer mandatory minimum sentences for crimes involving the potent synthetic opioid fentanyl.
Christina Nolan, U.S. Attorney for Vermont, told a Senate Judiciary subcommittee Wednesday that lowering the threshold for the amount of fentanyl needed to trigger mandatory minimum sentences would help prosecutors combat the dangerous drug.
Unlike heroin, which is plant-based, fentanyl is produced from chemicals in a lab. It can be 50 times as strong as heroin.
Fentanyl, Nolan said, is growing in prevalence in Vermont. It has been found laced into heroin and pressed into pill form so it resembles prescription opioids. There are reports that it also has been found in non-opioid drugs such as cocaine, she said.
Nolan argued that lowering the quantity of fentanyl that qualifies for steeper penalties would give prosecutors more tools in the fight against the opioid epidemic.
Under current law, people facing sentencing for crimes related to fentanyl are not subject to mandatory minimum sentences unless they have 40 grams or more, which is a very large amount of the potent substance.
“You don’t need to bring a lot to a place like Vermont,” Nolan told lawmakers. “Four grams — it could be potentially 2,000 lethal doses.”
Four grams would not meet the threshold to qualify for a mandatory minimum sentence, and sentencing guidelines would recommend someone serve between six and 12 months in prison, which, Nolan said “does not seem commensurate with the threat that you pose.”
The latest drug fatality data from the Vermont Department of Health showed that while the increasing rate of opioid-related deaths slowed in 2017, fentanyl is a growing issue.
The number of opioid-related fatalities increased by just one to a total of 107 over the previous year, but the number of deaths linked to fentanyl increased from 51 to 68.
Nolan also recommended ensuring that chemical relatives of fentanyl are classified under federal law so prosecutors can more easily bring charges in cases that involve those substances. Some drugs related to fentanyl, like carfentanil, are even more potent and dangerous.
Nolan repeatedly said she sees enforcement as just one part of what needs to be “a holistic” response to the crisis, involving efforts to treat people who are addicted to opioids and to prevent people from using drugs in the first place.
Sen. John Kennedy, R-La., touted a bill he introduced that would significantly lower the quantities necessary to trigger mandatory minimum penalties for trafficking and distributing fentanyl.
“It would seem to me that what you’re proposing is something that reasonable people can’t disagree on,” Kennedy said to Nolan.
But other senators were skeptical of the suggestion to impose stricter sentences on fentanyl-related crimes.
Sen. Dick Durbin, D-Ill., recalled the imposition of steep criminal penalties for dealing crack cocaine three decades ago, which, he said, have been linked to high rates of incarceration without proving to be effective in its goals.
“Now we’re being asked to dramatically increase the criminal penalties for fentanyl, so what lesson have we learned since 1986 that makes us go down this path again?” he asked Nolan.
Nolan responded that fentanyl is unprecedented in its potency.
“We’ve never seen anything like fentanyl before,” she said. “This is a new level of deadliness.”
Durbin also said he was troubled that the proposed legislation would set the mandatory minimum for trace amounts of fentanyl. Often, he noted, fentanyl is packaged to be identical to a prescription painkiller.
Nolan said the current threshold quantity of fentanyl to qualify for a mandatory minimum sentence “does not track the reality on the ground.” Forty grams of the substance could be enough for 20,000 overdoses, she said.
“I’m suggesting that 20,000 lethal doses is too many to require before you can bring a charge that gets you more than a six to 12 month sentence,” she said.
Sen. Patrick Leahy, D-Vt., a member of the Senate Judiciary Committee though not a member of the subcommittee to which Nolan testified, has not supported mandatory minimum sentencing because he believes judges should have discretion at sentencing, according to spokesperson David Carle.
Carle said Leahy does support a criminal justice package that would allow judges to enhance someone’s sentence by five years when fentanyl is involved.
Michael Desautels, federal public defender in Burlington, said concerns around the substance are justified.
“The fentanyl scare is a really valid scare,” he said.
However, he does not see harsher mandatory minimum sentences for fentanyl as a solution.
Under current law, judges have broad discretion to impose sentences that take into account the particular factors of different cases, he said. They have authority to set harsher sentences in drug cases if fentanyl is involved.
“They can slam somebody if they want already,” he said.
In Desautels’ experience, fentanyl in Vermont tends to be blended in with other substances like heroin or cocaine. The drugs are generally mixed at a higher point in the supply chain, before they reach the distributors on the ground in Vermont, he said.
“People are not avoiding mandatory minimums by selling just under a threshold amount of 40 grams of fentanyl,” he said.
Read the story on VTDigger here: Vermont’s U.S. attorney calls for tougher penalties on fentanyl.