N.J. Senator Wants Criminal Justice Revamp Tied to Opioid Change

  • Democrat looks to use expiring government power to cut deal
  • White House needs to be ally, advocates for change say

Sen. Cory Booker is planning to add criminal justice overhaul to Congress’s agenda this fall by linking it to an extension of the government’s power to ban fentanyl-like substances.

Booker (D-N.J.) has been trying to slash mandatory minimum prison sentences for nonviolent drug-related crimes, and reduce harsher penalties for crack possession, among other changes. He’s seeking to shift the U.S. response on overdoses toward promoting treatment for addiction, and away from jailing people with substance use disorders—placing himself in the middle of the broader congressional debate over how the U.S should respond to the persistent overdose crisis.

Booker said he’s eyeing a key October expiration of the government’s authority to treat fentanyl-like substances as powerful synthetic opioids, which law enforcement agencies say is necessary to prosecute people possessing these drugs. The senator wants to tie his proposed changes for the U.S. criminal justice system to any extension of this authority, which he’s opposed in the past.

“It’s wrong to take people who are addicted and to criminalize them in the way that this effort seems to be doing,” Booker said in an interview this week. “It’s trying to treat addiction as a crime.”

Photographer: Patrick T. Fallon/AFP via Getty Images
Amy Neville, outside the Roybal Federal Building in Los Angeles Feb. 14 2021, holds a portrait of her son Alexander, who died in June 2020 at age 14 of fentanyl poisoning. Overdose deaths nationwide surged last year.

Overdose deaths in the U.S. surged to 93,331 in 2020, the most the Centers for Disease Control and Prevention recorded in any year, data from earlier this year show. Opioids and fentanyl were among the main drivers of that increase.

Some lawmakers say the solution to overdose deaths lies in stopping illicit trafficking of these substances into the U.S., while others say the government can reduce demand by emphasizing treatment options. The October deadline on fentanyl-like substances provides an opportunity to force action on the issue, lawmakers on both sides say.

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White House Backing?

Whether Booker succeeds in shifting the focus away from enforcement may depend on whether he gets backing from the Biden administration, according to advocates for drug policy changes.

“People are scared they’ll be accused of not doing anything about the overdose crisis,” Maritza Perez, director of Drug Policy Alliance’s Office of National Affairs said about lawmakers. “Our country has historically responded to drugs in a way that’s punitive and enforcement-heavy, and changing that is hard.”

Perez said the government’s power to ban fentanyl-like substances has mostly prompted police to arrest more people of color—not to crack down on drug kingpins.

Federal prosecutions tied to fentanyl increased 3,600% between fiscal 2015 and 2019, the U.S. Sentencing Commission reported. Most of those prosecuted were people of color, civil rights groups say.

The Biden administration asked lawmakers in April to extend the ban on fentanyl-like substances until October, to allow time to outline a comprehensive approach on how to deal with drug trafficking and scheduling fentanyl substances—adding drugs to the list of banned substances.

Several federal agencies, led by the Office of National Drug Control Policy, are expected to release those recommendations by the fall, according to a spokesperson for the office.

If the White House backs reducing criminal sentencing around drug crimes, lawmakers are likely to follow, Perez said.

‘Chipping Away’

Congress temporarily reauthorized the government’s power to place fentanyl-like substances on the list of federally banned drugs in April after debating whether that power contributes to over-policing people suffering from addiction.

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Sens. Chuck Grassley (R-Iowa) and Maggie Hassan (D-N.H.) have said they want to make this authority permanent, and that federal agencies need to crack down on illicit drug manufacturers.

Grassley said he hasn’t seen evidence that his colleagues are working on a better response to the rising number of overdose deaths, so lawmakers should stop temporarily extending the authority.

Booker said this week he’s “chipping away” at the issue and hopes to gather support for changes when the Senate returns from its August break. The October deadline, he said, could help force the issue.

To contact the reporter on this story: Alex Ruoff in Washington at aruoff@bgov.com

To contact the editors responsible for this story: Robin Meszoly at rmeszoly@bgov.com; Anna Yukhananov at ayukhananov@bloombergindustry.com

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