Don’t let all the chaos and scandals of the Trump administration distract you from one of their most stunning successes: They’ve utterly changed the conversation in Washington when it comes to drug crimes. While a few prominent voices on Capitol Hill continue to call for doing away with mandatory minimum prison sentences, there’s a new bill being pushed by top Trump allies inside the Capitol to actually extend mandatory minimums to more fentanyl dealers and to eventually even apply the death penalty in some cases.
“It’s not just that it’s so potent, but it’s also that it’s so concentrated. So, it poses a unique risk in the way that other drugs do not,” Senator Tom Cotton (R-AR) told reporters when he unveiled his bill at the Capitol.
Besides lowering the amount of fentanyl required to impose a stiff mandatory minimum on dealers, Cotton’s Republican-sponsored bill also gives the Postal Service more authority and resources to stop the drug from flowing in at the nation’s borders. Small amounts of fentanyl are being used to lace heroin and even some cocaine, which is partly why the overdose rate has soared in recent years. These lawmakers say that’s why new legislation is needed that focuses on this opioid like a laser beam.
“To me, this is no different from somebody just taking a six-pack of battery acid and surreptitiously going into a grocery store and replaces the Bud Light and saying ‘let’s see what happens if somebody drinks it,'” Senator John Kennedy (R-LO), another sponsor of the bill, told reporters. “I can’t guarantee it’s going to stop every single one of them, but I can guarantee you one thing, the ones that get caught – they’re going to have a long time to think about it.”
This group of lawmakers are trying to codify the tough-on-crime approach being espoused by President Donald Trump and Attorney General Jeff Sessions. But many former prosecutors are dubious of expanding mandatory minimums, especially like this bill does which is by dropping the current 40 grams required for a mandatory minimum down to a mere two grams, which could potentially net a lot of low level dealers and users instead of traffickers and cartels.
“I was in favor of them for a long time and then experience showed that they tied my hands,” Senator Richard Blumenthal (D-CT), a former state attorney general, tells Rolling Stone. “But more importantly, the judge’s hands…I mean, in terms of what the higher sentence should be and the lower, and at the end of the day it had very little deterrent effect.”
Legal experts are wondering what data these tough-on-crime lawmakers are using as the basis for their new legislation.
“We’ve never found any evidence that increasing mandatory minimum sentences works,” Ames Grawert, senior counsel at the Brennen Center for Justice, tells Rolling Stone. “Instead, most of the research we’ve done has shown that prison sentences can be safely decreased with or without any adverse consequences for public safety. This is exactly the wrong direction to be going.”
Criminal justice reform picked up broad bipartisan support in the last Congress and it seemed like it had the support to pass, but it was quietly derailed behind the scenes by Cotton and then-Senator Jeff Sessions, which isn’t lost on Grawert.
“It’s notable that Cotton and Sessions used to be sort of the heckler’s veto, sort of the only people saying that sentencing reform wasn’t worth moving, and now they’re the ones setting party policy, and with the notable exception of [Republican Judiciary Chairman] Chuck Grassley, not a lot of Republican officials are speaking out against them,” Grawert adds.
Former presidential aspirant Senator Lindsey Graham (R-SC) is also a part of the effort. He’s now calling to go even further and extend the proposal to include Trump’s call to execute drug dealers.
“Right now, the upside of dealing in fentanyl from the drug dealer’s point of view is pretty good. You hook people for life as a way to keep them hooked,” Graham tells Rolling Stone. “The ultimate icing on the cake in terms of deterrents would be, you could literally be put to death by selling fentanyl.”
The attorney general released new guidelines last week urging prosecutors to use the federal drug kingpin statute to seek the death penalty for drug dealers, which Cotton says he supports. The open talk in Washington now of executing drug dealers is astounding to many.
“I think that’s really awful,” Senator Cory Booker (D-NJ) tells Rolling Stone. “That is not justice. That is not our common values of justice, of mercy, of punishment fitting the crime. It’s literally against our constitutional ideas of cruel and unusual punishment.”
That doesn’t mean Booker and other Democrats don’t also want to curtail the flow of fentanyl. They want the focus to stay on high level traffickers while not extending mandatory minimums that could keep expanding the nation’s prisons population.
“We can’t arrest our way out of this nation’s drug problems,” Booker says. “We’ve found that out with other drugs in this country and have now dug ourselves in a very deep hole where we’re spending billions and billions locking up more people.”
But the rhetoric from Republicans holding power in all corners of Washington continues to ratchet up, which isn’t lost on critics who wish they were focused on steering much needed resources to local communities reeling from the crisis.
“Local communities need help right now. We need help in treatment. We need help in diagnosis. We need help in developing alternative pain management in America. There aren’t a lot of options,” says Representative Gerry Connolly (D-VA). “I might add, some of the worst culprits here are frankly certain kinds of pharmaceutical companies who have flooded the market with their product… So, I don’t see how this grandstanding addresses any of that.”