Fairness in Fentanyl Sentencing Act of 2023

Mr. President, today, I would like to talk about a distasteful subject to me--I get angry whenever I think about it-- fentanyl dealers. I hope there is a special place in Hell for them-- fentanyl dealers.

Today is National Fentanyl Awareness Day. In 2021, fentanyl killed 71,000 Americans. If you break down these sterile statistics, you will see that somebody in our country dies from fentanyl poisoning every 7 seconds. There ought to be a special place in Hell for fentanyl dealers.

And these aren't just sterile statistics. These are real people, and they have real families whose lives are torn apart. A lot of these deaths occur among young people. Fentanyl is now the leading cause of death for Americans who are 18 to 49.

From 2020 to 2021, fentanyl deaths in our country increased by 24 percent. It was even more among young people.

What you allow is what will continue. And today, this body--the U.S. Congress--allows fentanyl dealers to carry on their person, if they would like to, enough fentanyl to kill 20,000 Americans before they face a mandatory 5-year minimum sentence if they are caught. Until these fentanyl dealers have to deal themselves with real consequences, I think the carnage is going to continue.

I have a bill--it is called the Fairness in Fentanyl Sentencing Act of 2023, and it will change what I just talked about drastically. It will reduce the amount

of fentanyl that a fentanyl dealer has to possess before facing the mandatory minimum 5 years of prison.

Now, I know you know this, but when you are dealing with fentanyl, the amounts really matter. Fentanyl is 50 times more potent than heroin--not 5, not 15--50 times more potent. It takes only 2 milligrams to kill you.

Here is a pencil. Here is the point of the pencil. The amount of fentanyl you can put on the point of a pencil will kill you.

Let me say that again.

The amount of fentanyl that you can put on the point of a pencil will kill you.

Today, fentanyl dealers can carry up to 40 grams of fentanyl before they face the mandatory minimum 5 years of prison.

And with me today is one of my colleagues, Mr. Wesley Davis, who is also a good lawyer, I might add. This is 40 grams of fentanyl. It is not actually fentanyl; it is flour. But if the flour were fentanyl, this would be 40 grams. You can have this much--you have to have this much before you get a minimum of a 5-year sentence. And remember the pencil? Enough to go on the head of a pencil can kill you. But you have to have this much--I don't know how many pencil points this is, but it is a lot. You have to have this much to get a minimum 5-year sentence-- 40 grams.

It would kill 20,000 people. This amount will kill every Member of this body 200 times over--every Member of this body 200 times over. And thanks to us, and the laws that we passed, the fentanyl dealer would just get a minimum 5-year sentence.

This bag has 400 grams in it. It is flour, but fentanyl would represent the same thing. This has 400 grams. You have to have 400 grams, given the laws that we have passed, to face a mandatory 10-year sentence, and 400 grams will kill 200,000 people dead as a doornail.

Shreveport, LA, in my State--some of you have been there; if you haven't, you should visit--is home to 184,000 people. So a dealer has to have 400 grams--an amount that would kill every man, woman, and child in Shreveport, 400 grams--in order to get a mandatory 10-year sentence.

These sentencing guidelines do not reflect how much damage can be done with just a little bit of fentanyl. For example, fentanyl dealers face a 5-year mandatory minimum sentence if they have 5 grams of methamphetamine. To get 5 years in prison, you just have to have 5 grams of methamphetamine, but you have to have 40 grams of fentanyl, which is 50 times more powerful than heroin. Does that make any sense to anyone?

Meth is a bad drug. I am not defending meth. But it is not nearly as lethal as fentanyl. This stuff will kill you, and people deal it every day in America. They deal it every day, and they are not facing consequences. In 2021, in fact, meth killed less than half as many people as fentanyl. Yet fentanyl traffickers--fentanyl dealers--I don't want to call them traffickers because that sounds too tame to me, too beige. They are dealers. They are drug dealers. They are death dealers. Fentanyl dealers can possess eight times as much fentanyl before facing the same mandatory minimum sentence as somebody who is dealing meth. We need a sentencing scheme that looks like somebody designed the damn thing on purpose.

We need to have a Criminal Code that reflects fentanyl's lethal force.

(Mr. MARKEY assumed the Chair.)

My bill, the Fairness in Fentanyl Sentencing Act of 2023, is pretty simple. It will cut the fentanyl threshold for the 5-year mandatory minimum sentence from 40 grams to 2 grams--from 40 grams to 2 grams. You are not going to have 2 grams of fentanyl on you unless you are dealing.

It would reduce the legal threshold for fentanyl analogs as well. Fentanyl analogs are synthetic copycats of fentanyl, and actually, these analogs can be even more lethal than pure fentanyl itself.

Today, a dealer can carry up to 10 grams of fentanyl analogs before facing a 5-year mandatory minimum sentence. My bill would drop that threshold down to half a gram. By doing this, my bill helps our Criminal Code reflect the reality that fentanyl is not like other drugs. It is not. I mean, as bad as meth is, as bad as PCP is, as bad as crack cocaine is, as bad as heroin is, as bad as powder cocaine is, fentanyl is in a class by itself.

The drug cartels who operate south of our border have found that fentanyl is a cheap way to cut corners and to make more money. They use fentanyl to make other drugs. They put fentanyl into cocaine. They put it into heroin, which makes the final concoction cheaper and more powerful. Today, everything from marijuana to Adderall can be laced with lethal amounts of fentanyl on the black market. It gives the concoction more kick, and the drug dealers make more money, which is all they care about. If the drug dealers don't measure it right, it will kill you.

Now, look, we all know that young people experiment, and many young people--I dare say most young people--are going to try drugs. When my son, whom I love more than life itself, was a youngster--he is no longer young. Well, he is young.

I consider you and I young, Mr. President.

When my son was growing up--he is now a grown man--I would lecture him about drugs, and I would say: Don't use them. I knew he was going to try them, but I would say: Don't use them.

He said: Dad, why?

You get addicted. You get addicted.

I was always terrified that my son would get addicted and would fall in with the wrong crowd.

That conversation today is different for parents with young teenagers. Now it is, you can't even try it once--not fentanyl. You can't even try LSD or meth or PCP or crack cocaine or heroin or powder cocaine. Do you know why? Because it might have fentanyl in it. The drug dealers cut these products with fentanyl, and if they put too much in it, you get one shot--one shot. Forget addiction; the first time a young person experiments might be the last.

My State of Louisiana, like every other State in this country, has seen the carnage of fentanyl. We all have. In 2021, 94 percent of drug overdose deaths in New Orleans were related to what? Fentanyl. In Louisiana, we call our counties parishes. Our coroner's office in East Baton Rouge Parish investigated 300 overdose deaths, and 88 percent of them last year were linked to fentanyl. In an average month in St. Tammany Parish, or county, where I live, we lose 10 or 11 people just about every month--10 or 11 young people usually--to fentanyl overdoses. Why? These weren't people just taking fentanyl; these were people taking other drugs that drug dealers--each of whom should be assigned a special place in Hell--that drug dealers are cutting with fentanyl to give the concoction a higher high to make more money. If they measure wrong and put too much fentanyl in it, you get to try their product one time, and then you are dead. These are sons. These are daughters. These are friends. These are coworkers. And every one of them has a family.

While our families and our kids are suffering, the cartels and the drug dealers who help them in America are getting rich. There was a recent report from the Department of Justice. It stated that fentanyl dealing is one of the Sonora Cartel's most lucrative endeavors. That cartel is led by three of El Chapo's sons. We are not talking choirboys here; they have made a boatload of money selling poison to our children.

But it is not just them; it is dealers in the United States as well. Our Customs and Border Protection officers are working as hard as they can to stop drugs from coming into this country, but their hands are tied by our bad policies.

More people have crossed the border in the last year than at any time in the history of ever. That is a fact. More than 5 million people have entered this country illegally under President Biden, during the Biden administration. I only have 4.6 million people in Louisiana, so imagine just us adding another State besides Louisiana. The problem is expected to get worse. As we know, title 42 expires next week, and more people will be coming in. But it is not just folks who are coming into our country illegally.

Let me say, I don't hate migrants. I don't hate immigrants. I love immigrants. I mean, we are a nation of immigrants. But we have a legal immigration system, and we ought to follow it. Most Americans distinguish between legal immigration and illegal immigration. If you support legal immigration, as I do, and oppose illegal immigration, that doesn't make you a racist, as some people think.

The American people oppose illegal immigration and support legal immigration for the same reason they lock their front doors at night. Most Americans don't lock their front doors at night because they hate everybody on the outside; they do it because they love people on the inside, and they want to know who is coming in and out. They are happy to welcome--I am happy to welcome Nigerian doctors and German engineers and whomever to come into our country legally. Vetting people at the border is not racist; it is prudent.

But a lot comes across that border--and not just people. A lot of fentanyl does as well. In 2022, Customs and Border Protection seized 14,000 pounds of fentanyl--a 127-percent increase from the previous year. That is enough fentanyl to kill every man, every woman, every child in the United States.

We have to show the cartels and the people in America, in our communities, who are dealing this stuff that there are consequences for poisoning people, especially young people.

I have also introduced a bill called Ending the Notorious, Aggressive, and Remorseless Criminal Organizations and Syndicates Act of 2023. It is known as the NARCOS Act. It will designate these cartels as foreign terrorist organizations. We need to give our border agents the resources to secure the border and to stop these dealers before they set foot in our country.

Let me return to the Fairness in Fentanyl Sentencing Act of 2023. It is not going to solve the problem, but it is a start. Dealers carrying enough fentanyl to kill a small town deserve to face a minimum mandatory sentence of 5 years, and they deserve to be punished more severely than someone carrying meth or PCP or crack cocaine because fentanyl is in a class by itself. Without serious prison sentences for these drug dealers who put money over human life, we are not going to make progress. A 5-year prison sentence can close one stream of fentanyl into our communities, and it might deter the next person who is looking to make a quick buck while trafficking this poison.

I am going to be clear. I am almost done. My bill is not looking to punish acts. My bill will not punish acts. I believe in free will and responsibility, but I also think there are mitigating circumstances in the nitty-gritty of life. That is why, if you are an addict and you are convicted of a crime, a serious crime, a judge will consider mitigating circumstances, like addiction. I wouldn't wish addiction on my worst enemy.

This bill isn't about addiction. A lot of these people don't even take their own product. This is about people--fentanyl dealers--who deal death every day to make money, and there ought to be a special place in Hell for them. In Congress, this Senate punishes them less than we punish somebody dealing meth.

Mr. President, as if in legislative session, I ask unanimous consent that the Committee on the Judiciary be discharged from further consideration of S. 878 and the Senate proceed to its immediate consideration. Further, I ask that the bill be considered read a third time and passed and that the motion to reconsider be considered made and laid upon the table.

Mr. President, I listened very carefully to my friend Senator Booker's remarks, and I appreciate them, and I thank him for his offer to work together. And I do want to work with him again, but I want to make a couple of things clear. My bill doesn't deal with addiction. My bill deals with dealers.

A pencil, the point of the pencil--enough heroin to fit on a point of a pencil will kill you dead. You are not walking around with 40 grams of fentanyl for your own personal use. You are going to deal it. You are going to cut other drugs with it. You are going to sell it to young people, probably not even tell them fentanyl is in it.

And you are not going to measure the fentanyl very carefully. If you get too much in it, somebody dies. There are others, because if you can get them to take your meth with fentanyl--laced with fentanyl--given that fentanyl is 50 times more powerful, more addictive than heroin, you can get them addicted.

I am not talking about addicts. I am talking about dealers--dealers in death, dealers that this body punishes less severely than a meth dealer or a crack cocaine dealer or a PCP dealer or an LSD dealer.

What you allow is what will continue. I don't know if my bill will stop all the fentanyl dealers in America. I can't make you that promise. But it will, sure as hell, stop the dealer caught dealing, and that will save lives.

I agree with my good friend Senator Booker. I believe in justice. The definition of justice for some is complicated. I believe in the definition that was put forth. I think it was Saint Augustine who said: Justice is when you get what you deserve. Justice is when you get what you deserve. And fentanyl dealers deserve, yes, a special place in hell, but they sure deserve to be punished more severely than dealers of less dangerous drugs.

Reserving the right to object.

Mr. President, the Senator from Louisiana is a friend and someone who is, as he said, angry about these issues. That passion is real. His anger, his frustration, his determination is something that I share. In fact, I think this is one of the issues that, if you polled 100 Senators, you would see 100 Senators who sincerely and urgently believe we need to do something with this crisis that the Senator from Louisiana has so patently and clearly and candidly put forward. The fentanyl crisis is killing Americans at outrageous rates. Doing nothing or continuing to do the same thing is absolutely unacceptable.

So my colleague, his passion--Louisianians should know that this is one of the best fighters when it comes to protecting people in his State, and his passion for protection affects people all over this country.

But this is the challenge I have. We have now seen generations of the so-called War on Drugs, and the solutions that we seem to come up with are about more and more and more incarceration, longer and longer and longer sentences. And if that would solve the problem, count me in for continuing to go down that pathway.

We now incarcerate more people than any country on the planet Earth. One out of every three incarcerated women on the planet Earth is here in America. One out of every four incarcerated people in the world is here in America. But has that stopped the crisis of drugs in our communities, kids dying of fentanyl, of opioids? No. There is no correlation. Not one study--nothing--shows that higher and higher rates, higher and higher sentencing relate in any way to safer communities, and I have looked for that data.

The Department of Justice itself--the folks who are prosecuting people for drugs--their own report from the National Institute of Justice says more severe punishments do not chasten individuals convicted of these crimes. It has no correlation at all.

And yet, as my colleagues pointed out, every 7 seconds someone is dying. And so the question is this: What will make the difference?

My colleague, if you follow the evidence that you so passionately talked about on this day--National Fentanyl Awareness Day--the things that we know are actually driving down the deaths are treating this issue like a national health crisis.

Yes, we need law enforcement. Yes, we need to stop this fentanyl coming into our country. Yes, the law enforcement needs all the tools. I support them. I will fight for them. I will continue to invest in them.

But what is lacking to save lives is the kind of healthcare access that we need. Drug treatment, awareness, public health interventions-- we know those work, but yet we don't have the resources in communities to do them.

I bring your attention to some of the facts. The National Institutes of Health reports that 85 percent of our prison population right now-- think about that. The overwhelming majority of our prison population right now has an active substance use disorder of people incarcerated involving drug use. That is who we are incarcerating in America right now, folks coming in and out, getting further and further engaged in that dark world of drug abuse and drug sales; but we are not solving the problem.

Let me bring attention to the fact that, when it comes to sentencing, my colleague was talking about the mandatory minimums. But do you know what? If you get caught with possession--I know this--you get tagged with possession with intent to distribute. God, if you are in a school zone, you get tagged with something else.

We have prosecutors now that could stack up 20, 30, 40, 50 years, even more so. I don't know if folks know this, but on your first offense, possession with intent to distribute has a 5-year mandatory minimum, but you could be given up to 40 years. In the second offense in the United States of America, you could get a life sentence. The mandatory minimum is 10 years to life.

Is that stopping the crisis in our country? Do we need to bring in the death penalty? Is that going to stop what is happening in every 7 seconds?

Thirty years I have lived in Newark--25 years to be exact--and God, I have watched the drug war and what it has done: more mandatory minimums, more incarceration, and lives that continue to be destroyed by the horrors of drugs. I beg this body to look at the evidence of what actually saves lives.

Did you know that the No. 1 reason why people don't call for help when someone is having a drug overdose is because they are afraid of the consequences when they engage with the police? People are dying right now because people are afraid of the police because we are treating this like just a

law enforcement problem and not a public health problem.

I will join with any colleague on either side of the aisle to stop the scourge of fentanyl taking too many of our children, but, God, follow the evidence, and let's work together on what we see is actually lowering causes, lowering the rates of death.

So, yes, I object with a heart that is hurting with the same anger that my colleague has shown.

I will work with him. We have worked together before. Let's do something that is a comprehensive approach, that follows the data, that follows the report, that follows the National Institutes of Health and the DOJ's best recommendations.

I will join with him, and we will bring to the floor a comprehensive bill that does affect the fentanyl coming into our country, overwhelmingly being brought by Americans; that does affect law enforcement's capabilities and powers to detect those substances, as I found out on the border; that does impact the addicts that he so passionately and compassionately cares about. Let's do a comprehensive bill, not something that the data does not support will actually stop children from dying like they have died in the many seconds that I have talked.

I object.

Mr. President, I ask unanimous consent that I be permitted to speak for 11 minutes, followed by Senator Grassley for 10 minutes, and Senator Menendez for 5 minutes prior to the scheduled vote.