October 18, 2016
The Honorable Tom Reed
U.S. House of Representatives
2437 Rayburn House Office Building
Washington, DC 20515
cc: Speaker Paul Ryan, Minority Leader Nancy Pelosi, Rep. Bob Goodlatte, Rep. John Conyers.
RE: Opposition to H.R. 6158, HELP Act of 2016
Dear Rep. Reed,
On behalf of a coalition of groups working toward criminal justice reform, we write to
respectfully express our opposition to your bill, H.R. 6158, the HELP Act of 2016. H.R. 6158
would expose individuals caught selling fentanyl or a substance containing fentanyl to
mandatory life without parole or death penalty sentences. Such an approach would be a dramatic
step in the wrong direction at a time when there is a bipartisan movement aimed at rolling back
the harsh drug sentences created in 1986. H.R. 6158 would also exacerbate the opioid epidemic
our country is currently undergoing. The bill is out of step with the times, science, data, and
public opinion and doubles down on 30 years of ineffective drug policy, and we ask that it be
revised.
We are not unaware of the growing challenges around fentanyl and heroin in many
communities, with an increasing number of overdose deaths attributed to the presence of
fentanyl.1 But H.R. 6158 will not deter this drug’s use. Fentanyl is a synthetic, rapid-acting
opiate analgesic, commonly added to heroin to increase its potency. Because fentanyl is
hundreds of times more powerful than heroin,2 individuals high on the international supply chain
of heroin trafficking are incentivized to strengthen a diluted product.3 The head of the DEA
testified before the Senate in June 2016 that fentanyl was often added high up and early in the
supply chain – in China and Mexico - long before drugs enter the United States.4 By the time the
drugs make it to American streets and homes, street-level sellers and their buyers are unaware of
the makeup of their product and its potency.5 H.R. 6158 lacks sufficient mens rea protections
because it would punish people with mandatory life or death sentences for crimes they do not
even know they are committing, because they do not know that fentanyl is in their drugs. For the
same reason, H.R. 6158 will have no deterrent effect on the use or trafficking of fentanyl – if
Donna Leinwand Leger, “DEA: Deaths from fentanyl-laced heroin surging,” USA Today, last modified March 18,
2015, http://www.usatoday.com/story/news/2015/03/18/surge-in-overdose-deaths-from-fentanyl/24957967.
2
Center for Disease Control and Prevention, “Fentanyl: Incapacitating Agent,” last modified November 20, 2014,
http://www.cdc.gov/niosh/ershdb/EmergencyResponseCard_29750022.html.
3
Fred Bever, “Illicit Version Of Painkiller Fentanyl Makes Heroin Deadlier,” NPR, last modified August 26, 2015,
http://www.npr.org/sections/health-shots/2015/08/26/434618809/ilicit-version-of-painkiller-fentanyl-makes-heroindeadlier.
4
Department of Justice, “Testimony of Chuck Rosenberg,” https://www.judiciary.senate.gov/imo/media/doc/06-0716%20Rosenberg%20Testimony.pdf.
5
Barry Leonard, National Drug Threat Assessment 2008 (Darby: Diane Publishing, 2009).
1

users and sellers don’t know that fentanyl is in their drugs, the punishments for such drugs are
irrelevant.
Furthermore, H.R. 6158 will apply to low-level offenders and addicts and produce unjust
punishments that do not fit the offender or reduce drug trafficking. H.R. 6158 mandates life
without parole or the death penalty for those trafficking in 100 grams or more of fentanyl or
fentanyl-laced heroin when it can be linked to an overdose death. By focusing on quantity rather
than role, H.R. 6158 risks impacting low-level drug users who pool their resources to sell drugs
to fund their own use or those who are small-time couriers. The target may be kingpins, but
history and U.S. Sentencing Commission data have shown that mandatory minimum drug
sentences are applied mainly to low-level street users/sellers, not high-level suppliers.6 The
Commission has found “that the quantity of drugs involved in an offense is not closely related to
the offender’s function in the offense.”7 H.R.6158 will also not reduce drug trafficking because it
would target low-level sellers and users who are easily replaced and whose incarceration has
little to no impact on the drug trade.8
H.R. 6158 is unnecessary and will compound, not reduce, the inefficacy of existing laws.
Since 1986, selling 100 grams or more of heroin has triggered a 5-year mandatory minimum.
The same mandatory minimum applies to selling 40 grams of any substance containing even
trace amounts of fentanyl or a mere 10 grams of any substance containing even trace amounts of
an analogue of fentanyl. For 30 years, 10-year mandatory minimum sentences have applied to
drug trafficking offenses involving one kilogram of heroin, 400 grams of any substance
containing even trace amounts of fentanyl, or 40 grams of any substance containing even trace
amounts of an analogue of fentanyl. For 30 years, there has been a 20-year mandatory minimum
sentence for any fentanyl or heroin offense in which death or serious bodily injury results – a
strict liability offense.9 These drug quantities and sentence lengths were chosen at random,
without hearings or consultation with drug experts, in the heat of election-year battles in which
people of both parties were trying to out-tough each other on drugs.10 These mandatory
minimum sentences have existed and been enforced for 30 years, and they have done nothing to
prevent or stop our current opioid problems in the U.S.

6

U.S. Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties 171 (2011),
http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimumpenalties/20111031-rtc-pdf/Chapter_08.pdf.
7
Id. at 168.
8
Department of Justice, “Testimony of Chuck Rosenberg,” https://www.judiciary.senate.gov/imo/media/doc/06-0716%20Rosenberg%20Testimony.pdf.
9
“21 U.S. Code § 841 – Prohibited acts A,” Legal Information Institute, Cornell University Law School,
https://www.law.cornell.edu/uscode/text/21/841.
10
See Kevin Ring and Eric Sterling, Ayotte Drug Amendment Will Repeat Mistakes of the Past, The Hill (June 7,
2016), http://thehill.com/blogs/congress-blog/healthcare/282498-ayotte-drug-amendment-will-repeat-mistakes-ofpast (“Congress was driven by bare politics: the desire to appear to be responding harshly to a crisis. Why, for
example, were the minimum prison sentences set at five and 10 years instead of two, four, or 6 years? Why five
grams of meth instead of 25? The numbers were pulled out of the air. The quantities have been proven to create the
wrong incentives at the Justice Department – a focus on low-level offenders, and the very long prison terms have
swollen federal prisons to the breaking point and undermined their deterrence capacity.”).

Making mandatory minimum sentences harsher for opioid crimes lacking any mens rea
standards will not make our opioid problems better. Instead, these lengthiest of punishments for
strict liability offenses will lock up users, addicts, and low-level offenders at huge costs to
taxpayers, without reducing drug use or addiction or making Americans safer. Cases with the
death penalty are estimated to cost taxpayers $1.26 million. Prisoners on death row cost
taxpayers $90,000 more each year than a non-death row prisoner.11 Each year of incarceration in
federal prison costs taxpayers over $30,000 per prisoner,12 with costs increasing astronomically
from a population that is increasingly growing older, suffering illness, and eventually dying
behind bars.13 More life sentences for the low-level drug offenders targeted by H.R. 6158 will
only add to these costs. It would be wiser to devote those funds to implementing the provisions
of the Comprehensive Addiction and Recover Act and focus federal dollars where they will
actually make a difference.
We also have serious concerns about the constitutionality of the death penalty in the
circumstances set forth in HR 6158. Because death is unique among punishments in its severity
and irrevocability, the Supreme Court has limited the death penalty to “a narrow category of the
most serious crimes” and to those offenders “most deserving of execution.” HR 6158 would be
an unprecedented expansion of the use of the death penalty to the non-intentional death of a drug
user. Further, H.R. 6158 raises significant federalism concerns, as it would dramatically expand
the jurisdiction of the federal courts to new “capital” cases simply by virtue of the type of drug
used by the victim before his or her death.
H.R. 6158 will lead to the incarceration of low-level distributors and individuals who
struggle with addiction. In a time when nearly one in 100 Americans is incarcerated14 and
populations of color continue to be disproportionately affected by convictions and harsh
sentences,15 we must embrace a public-health approach to combatting the harmful effects of
fentanyl and other opioids. For these reasons, we strongly urge you to reconsider or abandon
H.R. 6158.
Please contact Michael Collins – mcollins@drugpolicy.org – if you have any questions.
Sincerely,

11

http://www.deathpenaltyinfo.org/costs-death-penalty.
80 FR 12523 (Mar. 9, 2015), https://www.federalregister.gov/documents/2015/03/09/2015-05437/annualdetermination-of-average-cost-of-incarceration.
13
U.S. Dep’t of Justice, Office of the Inspector General, The Impact of an Aging Inmate Population on the Federal
Bureau of Prisons 2-3, 10 (May 2015) (finding that inmates over age 50 are the fastest-growing demographic in
federal prisons, due partly to lengthy mandatory drug sentences, and that such prisoners cost eight percent more per
year to incarcerate than younger inmates, due mainly to medical costs),
https://oig.justice.gov/reports/2015/e1505.pdf.
14
Adam Liptak, “1 in 100 U.S. Adults Behind Bars, New Study Says,” New York Times, Feb. 28, 2008,
http://www.nytimes.com/2008/02/28/us/28cnd-prison.html.
15
“Racial Disparities in Sentencing,” ACLU, Oct. 27, 2014,
https://www.aclu.org/sites/default/files/assets/141027_iachr_racial_disparities_aclu_submission_0.pdf.
12

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