This commentary was originally published by The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system.
A national icon dies of an accidental overdose. A media frenzy develops as public scrutiny focuses on the new, highly potent drug that is suspected of killing him.
At the same time, a measure has been proposed in Congress that would impose harsh new mandatory prison sentences for offenses involving tiny quantities of the new drug.
The icon, of course, is Prince. The drug is fentanyl, an opioid painkiller up to 50 times more powerful than heroin. The amendment, offered to a defense policy bill now pending on the Senate floor, was proposed by Sen. Kelly Ayotte of New Hampshire, which is experiencing a genuine crisis as overdose deaths mount in the Granite State. If approved, the amendment would trigger a five-year mandatory prison sentence for an individual caught with as little as half a gram of fentanyl.
But we have been here before. Thirty years ago this month, University of Maryland basketball star Len Bias died of a drug overdose just hours after the Boston Celtics selected him second overall in the 1986 NBA Draft. His death sparked a whirlwind of panic about crack cocaine, the new drug that reportedly killed him.
By the fall, Congress had adopted the Anti-Drug Abuse Act of 1986, which included harsh mandatory-minimum penalties for crack cocaine offenses. The new law imposed a five-year mandatory prison sentence for individuals possessing just five grams of crack — the weight of two sugar packets. To trigger the same penalty for powder cocaine, one would have needed to sell at least 500 grams, thus establishing the notorious 100:1 drug quantity distinction between the two forms of cocaine.
The devastation of that “tough on crime” approach to drugs still reverberates today. For more than two decades, thousands of individuals were sentenced under draconian crack penalties. By 1996, the average federal crack sentence was 10 years in prison — far surpassing penalties for any other drug. Due to racial disparities in law enforcement, more than 80 percent of individuals prosecuted for these offenses were black.
More than two decades after the Anti-Drug Abuse Act was enacted, Congress adopted the Fair Sentencing Act of 2010, which partially corrected the unfair sentencing disparity between crack and powder cocaine. The bipartisan Sentencing Reform and Corrections Act, now pending on the Senate floor, would make those reforms retroactive.
The lesson of Len Bias is that increasing sentences for drug offenses is not the right answer, regardless of the substance. Harsh mandatory sentences do little to promote public safety, but come at great costs — the consequences of hastily enacted penalties endure.
Which brings us back to Prince, whose tragic death could be an educational moment for the country if it raises awareness about the dangers of opioid use and inspires us to treat drug use as a public health issue, not a criminal justice one. But rather than learning from the mistakes of the past, Congress is in danger of repeating them.
Legislation proposed by Senator Ayotte would establish mandatory-minimum penalties of five, 10, and 20 years, in some cases, for very small quantities of fentanyl-laced heroin. It’s conceivable that under this law, Prince could have received a five-year mandatory term in federal prison — an outcome that would horrify most of his fans. Prison is the last place to deal with a person’s problematic drug use.
Ironically, we eventually learned that Len Bias was not in fact the victim of a crack overdose — rather he died as a result of snorting powder cocaine. But his death was used to ram legislation through Congress that decimated communities of color, while having little impact on major drug distributors.
Lawmakers should learn the lessons from both tragedies. Rather than increasing mandatory prison sentences that do nothing to impact drug use, Congress should adopt evidence-based proposals that focus on public health over punishment, and provide resources so that individuals can succeed.
In honor of Prince, let’s not go crazy again.
Jeremy Haile is federal advocacy counsel for The Sentencing Project. Michael Collins is deputy director at the Drug Policy Alliance’s Office of National Affairs.