The Trouble With Cracking Down on the Drug That Killed Prince

As lawmakers scramble to stem the opioid crisis, proposed fentanyl punishments hark back to the early days of the war on drugs.
Prince performs on Oct. 11, 2009, at the Grand Palais in Paris. (Photo: Bertrand Guay/AFP/Getty Images)
Jun 4, 2016· 3 MIN READ
Rebecca McCray is a staff writer covering social justice. She is based in New York.

In the month and a half following Prince's death, rampant speculation swirled around his passing. As the media and the public awaited autopsy results, theories about his alleged reliance on painkillers and a possible overdose took hold, stoking the burning debate around the rise of opioid addiction in the U.S. On Thursday, the Midwest Medical Examiner’s Office officially reported that the singer’s death was caused by an accidental overdose of self-administered fentanyl, a painkiller more potent than heroin or morphine.

Fentanyl had made headlines for catching the eye of lawmakers in Washington, D.C., looking to curb the opioid crisis in their home states. Sen. Kelly Ayotte of New Hampshire in September proposed two amendments to a defense spending bill that would reduce the amount of fentanyl a criminal defendant must possess to trigger a mandatory minimum sentence. The bill is up for a vote in the Senate next week.

“My bill would simply bring parity to the penalties for trafficking in heroin and the much more potent fentanyl, which will improve efforts to get this drug off the streets and appropriately prosecute those individuals and organizations who are profiting off of it,” Ayotte said in a statement.

Sentencing for fentanyl possession could also become harsher if two sentencing reform packages awaiting votes in the House and Senate succeed. An identical provision in each of the bills would require judges to add up to five more years of prison time to a mandatory sentence for individuals convicted of any drug crime involving fentanyl. Mandatory minimum sentences for fentanyl have been in place since 1986, according to Families Against Mandatory Minimums, a D.C.-based reform organization; this bill would make those laws even more punitive.

“Mandatory minimums for fentanyl existed when Prince overdosed, and they didn’t stop him,” said Molly Gill, director of federal legislative affairs for FAMM. “What he needed was treatment. We have a huge heroin and fentanyl problem on our hands, and those mandatory minimums are not making a bit of difference.”

Gill is critical of Ayotte’s amendments as well. Unlike the bills before the House and the Senate, her provision would trigger mandatory minimums for much smaller amounts of drugs containing trace quantities of fentanyl. Ayotte’s proposal would require a mandatory minimum if a trace amount of fentanyl was found in just half a gram of any substance. Currently, the law requires possession of 20 times that much to trigger the mandatory minimum sentence.

That would mean “slapping that extra prison time on the guy you catch on the streets who doesn’t even know his drugs include fentanyl,” said Gill. “This is going to backfire and will put addicts and users in prison instead of traffickers.”

In Massachusetts, Sen. Edward Markey was quick to tie Prince’s fentanyl-related death to problems in his own state, where he said 754 residents died from fentanyl-related overdoses in the last year, according to The Boston Globe. Markey’s comments, rather than focusing on criminal penalties for low-level possession, were focused on stopping the illegal production of fentanyl in countries such as China and Mexico and preventing its entry into the U.S.

“Prince’s death to fentanyl is now helping to elevate this issue, so we can have a discussion, a debate in our country, about what we need to do,” Markey told federal drug enforcement and border protection officials in Boston on Friday, according to The Boston Globe.

The synthetic drug, which is legally administered in hospitals to treat severe pain, is increasingly added to drugs such as heroin before they reach the U.S.—making the anti-trafficking efforts described by Markey essential. Street drugs spiked with fentanyl, which are then bought by unsuspecting users, have contributed to the uptick in overdose deaths, according to Gill. Its potency appeals to dealers who use it to dilute other substances, allowing them to make a greater profit.

“International interdiction actually works and does help to crack down on the drugs at the source,” said Gill. “It’s really hard to crack down on fentanyl in the streets because most people don’t even know it’s in their drugs.”

Amid the bigger picture of the sentencing reform bills awaiting consideration in Congress, the heightened fentanyl sentences stand out, recalling the introduction of mandatory minimums for drugs such as crack and powder cocaine in the mid-1980s. Crack cocaine was punished especially harshly, triggering a mandatory five-year sentence for first-time simple possession of just five grams as lawmakers spouted largely unfounded theories about the addictive and dangerous qualities of crack versus powder cocaine. That sentencing disparity, which had a disproportionate impact on low-income communities of color, was reduced in 2010 with the passage of the Fair Sentencing Act.

Gill sees a parallel between the hasty choice to introduce harsher sentences for crack cocaine in the 1980s and the rush to crack down on fentanyl today.

“These [sentences] are not holy gospel; they are not even science-based,” said Gill. “These are just numbers lawmakers picked because they sound tough.”