Tough-on-crime Criminal Justice Bills And Policies, Some Of Which Seek To Add Fuel To The Failed War On Drugs
How the proposed SITSA Act and federal charging policies could affect synthetic-drug prosecutions and sentencing
Federal drug laws and sentencing policies have undergone significant debate over the last several decades. In 2017, Congress considered legislation known as the Stop Importation and Trafficking of Synthetic Analogues Act of 2017, commonly called the SITSA Act. The legislation was introduced as H.R. 2851 in the House of Representatives and as S. 1327 in the Senate. The proposals focused primarily on creating a new framework for controlling certain synthetic drug analogues and giving federal authorities additional tools to address emerging synthetic substances.
Quick Take: The SITSA Act was a significant federal drug-policy proposal, but the original description of the legislation as creating new mandatory minimum sentences is not accurate. The Senate Judiciary Committee’s summary stated that the legislation would create a new Schedule A for certain synthetic analogues, establish criminal penalties for certain conduct involving those substances, and contain no new mandatory minimum sentences. H.R. 2851 later passed the House in June 2018 but did not become federal law.
What Was the SITSA Act?
H.R. 2851, the Stop Importation and Trafficking of Synthetic Analogues Act of 2017, was introduced in the House on June 8, 2017. S. 1327 was introduced in the Senate the same day by Senator Chuck Grassley, with Senator Dianne Feinstein as a cosponsor. The legislation sought to amend the federal Controlled Substances Act to provide a faster mechanism for controlling certain synthetic analogues of already-controlled substances.
The legislation was developed in response to concerns about new psychoactive substances, including synthetic cannabinoids, synthetic cathinones, and synthetic analogues of fentanyl. Federal lawmakers and law-enforcement officials expressed concern that manufacturers could make small chemical changes to existing controlled substances and create new substances that were difficult to regulate under the existing scheduling system.
The central issue: The proposed legislation was designed to address the difficulty of responding quickly when new synthetic substances appear. Rather than waiting for each substance to move through the traditional scheduling process, the legislation proposed creating a separate framework for certain qualifying synthetic analogues.
What Would the Proposed Law Have Changed?
The Senate Judiciary Committee’s 2017 description of S. 1327 proposed creating a new category known as Schedule A. Under the proposal, a substance could be placed into that category when it had a chemical structure substantially similar to an existing controlled substance and an actual or predicted physiological effect equal to or greater than an existing controlled substance.
New Schedule A
The proposal would have created a new category for certain synthetic analogues of controlled substances, allowing the government to respond more rapidly to emerging substances.
Additional Enforcement Tools
The legislation proposed additional criminal and civil enforcement mechanisms relating to the importation, manufacture, distribution, and handling of qualifying Schedule A substances.
No New Mandatory Minimums
The Senate Judiciary Committee’s summary expressly stated that the proposal contained no new mandatory minimum sentences and did not criminalize simple possession of Schedule A substances.
The proposal also included provisions addressing DEA registration and the handling of Schedule A substances. The Senate Judiciary Committee described the legislation as an effort to respond more quickly to synthetic substances that could present serious public-health and enforcement concerns.
Why Synthetic Drug Analogues Created a Federal Enforcement Challenge
Synthetic drugs can create unusual challenges for the federal controlled-substance system because manufacturers can alter the chemical structure of a substance while attempting to produce effects similar to an already-controlled drug. Federal lawmakers and the Drug Enforcement Administration testified in 2017 about concerns involving synthetic cannabinoids, synthetic cathinones, and fentanyl analogues.
In testimony before the House Judiciary Committee, the DEA described concerns about the proliferation of illicit fentanyl and fentanyl analogues and the risks associated with highly potent synthetic opioids. The agency also discussed the difficulty of addressing newly emerging substances through existing federal scheduling mechanisms.
Supporters of the SITSA proposal argued that a more flexible scheduling system could allow federal authorities to respond more quickly to emerging substances. The legislation therefore focused on the classification and regulation of synthetic analogues rather than simply creating a new general sentencing structure.
Important distinction: Drug classification, criminal penalties, and mandatory minimum sentencing are related but separate issues. A law can change how a substance is classified without necessarily creating a mandatory minimum sentence for every offense involving that substance.
The 2017 Change in Federal Charging Policy
The debate over the SITSA Act occurred at the same time that the federal government was changing its approach to charging and sentencing in drug cases. On May 10, 2017, Attorney General Jeff Sessions issued a memorandum establishing new Department of Justice charging and sentencing policies for federal prosecutors.
The policy directed federal prosecutors to pursue the most serious, readily provable offense supported by the facts and applicable law, subject to limited exceptions and supervisory review. The Department of Justice described the policy as a return to longstanding charging principles and emphasized prosecutors’ responsibility to apply federal law to the facts of individual cases.
Smart on Crime
The Obama-era Smart on Crime initiative included policies intended to focus federal resources on serious offenses and reduce the use of certain harsh sentencing provisions in qualifying lower-level drug cases.
2017 DOJ Charging Policy
The Sessions memorandum rescinded the 2013 charging policy and instructed federal prosecutors to pursue the most serious readily provable offense, while allowing exceptions in appropriate circumstances.
The Department of Justice’s Office of Inspector General later reported that federal drug sentencing outcomes from 2010 through 2015 had shifted in ways consistent with the Smart on Crime initiative, including fewer mandatory minimum sentences and recidivist enhancements being imposed in drug cases. The Inspector General also noted limitations in the available data because it did not have information about charging decisions prosecutors considered but did not pursue.
Jeff Sessions and the Debate Over Mandatory Minimum Sentences
In June 2017, Attorney General Sessions published an opinion article in The Washington Post defending the administration’s approach to federal drug enforcement and sentencing. Sessions argued that the federal government should enforce existing drug laws and that prosecutors should not routinely avoid charging conduct that triggers statutory sentencing provisions.
Sessions’s position was disputed by criminal-justice organizations, former federal prosecutors, academics, and other commentators who argued that mandatory minimum sentencing can produce lengthy sentences and reduce judicial discretion. Other commentators supported the administration’s position and argued that prosecutors should enforce the penalties established by Congress.
These competing arguments were part of a broader national debate over the appropriate role of mandatory minimum sentences, prosecutorial discretion, incarceration, and federal enforcement of drug crimes.
A key legal distinction: The Attorney General’s 2017 charging memorandum was a Department of Justice policy directive. It did not itself create a new federal mandatory minimum sentence. Mandatory minimum penalties are established by federal statutes enacted by Congress.
What Happened to H.R. 2851?
H.R. 2851 did not become law. The House Judiciary Committee reported an amended version of the bill in June 2018. On June 15, 2018, the House passed H.R. 2851 by a recorded vote of 239 to 142.
The bill was then received in the Senate and referred to the Senate Judiciary Committee. No further action was taken on H.R. 2851. A House report later explained that the legislation was not included in the final legislation that became the SUPPORT for Patients and Communities Act, Public Law 115-271.
June 2017
H.R. 2851 was introduced in the House, while S. 1327 was introduced in the Senate.
June 2018
The House considered an amended version of H.R. 2851 and passed it by a 239-142 vote.
Senate Referral
The House-passed bill was received by the Senate and referred to the Senate Judiciary Committee.
No Enactment
The legislation did not complete the legislative process and did not become federal law.
Why Federal Drug Charges Can Carry Serious Consequences
Although the SITSA Act itself did not become law, federal drug prosecutions can still involve significant penalties under the federal Controlled Substances Act and other federal statutes. The potential consequences of a federal drug case can depend on the substance involved, the quantity alleged, the defendant’s conduct, prior convictions, the applicable statute, and other facts surrounding the investigation.
Federal prosecutors may also consider whether an alleged offense involves manufacturing, distribution, possession with intent to distribute, importation, or another form of prohibited conduct. Certain federal statutes impose mandatory minimum sentences for specified offenses, meaning that a judge’s sentencing discretion can be limited when the statutory requirements are satisfied.
For that reason, someone facing a federal drug investigation or indictment should not assume that the case will be treated the same way as a state drug prosecution. Federal criminal cases involve federal statutes, federal procedural rules, federal prosecutors, and the federal sentencing system.
Federal drug charges require careful review.
The specific substance, alleged quantity, charging statute, prior criminal history, evidence, and circumstances of the investigation can all affect the potential consequences of a federal case.
What a Federal Drug Defense May Involve
Federal drug cases can involve complicated factual and legal issues. Depending on the circumstances, a defense attorney may need to examine the government’s evidence, the legality of searches and seizures, statements made during an investigation, laboratory testing, chain-of-custody evidence, confidential informants, alleged drug quantities, and the government’s theory concerning a defendant’s role.
The Evidence
The government’s evidence should be examined carefully, including physical evidence, statements, laboratory results, surveillance, electronic evidence, and testimony.
The Search
When evidence was obtained through a search or seizure, the circumstances surrounding that search may become an important part of the defense.
The Charges
The precise federal statute charged can affect the potential penalties, sentencing exposure, and issues that must be addressed in the case.
The Defendant’s Role
In cases involving multiple people, the government’s allegations about each defendant’s individual conduct can be particularly important.
Frequently Asked Questions About Federal Drug Charges
Did the SITSA Act become law?
No. H.R. 2851 passed the House in June 2018 but was subsequently referred to the Senate Judiciary Committee. It did not complete the legislative process and did not become federal law.
Did the SITSA Act create new mandatory minimum sentences?
No. The Senate Judiciary Committee’s 2017 summary of S. 1327 expressly stated that the legislation contained no new mandatory minimum sentences. The proposal instead focused on creating a new Schedule A classification and establishing criminal and civil enforcement tools concerning qualifying synthetic analogues.
What did Attorney General Sessions change in 2017?
In May 2017, Sessions issued a Department of Justice memorandum directing federal prosecutors to pursue the most serious, readily provable offense supported by the facts and applicable law, subject to stated exceptions and supervisory procedures. The memorandum changed federal charging policy but did not itself create new criminal statutes or mandatory minimum sentences.
Can federal drug charges result in mandatory minimum sentences?
Yes. Federal statutes establish mandatory minimum penalties for certain drug offenses and other crimes. Whether a mandatory minimum applies depends on the specific statute, substance, quantity, defendant’s conduct, prior convictions, and other statutory requirements.
Why is federal criminal defense experience important in a federal drug case?
Federal criminal cases involve federal statutes, federal court procedures, federal prosecutors, and the federal sentencing system. A defense strategy may require examination of the investigation, evidence, charging decisions, search-and-seizure issues, sentencing exposure, and the government’s specific allegations.
Sources and Federal Criminal Law Resources
U.S. Government Publishing Office — H.R. 2851, SITSA Act
View the House-passed version of H.R. 2851
U.S. Government Publishing Office — S. 1327, SITSA Act
View the Senate-introduced version of S. 1327
Senate Judiciary Committee — SITSA Act Summary
Read the committee’s 2017 summary of S. 1327
U.S. Department of Justice — 2017 Charging and Sentencing Policy
Read the Department of Justice announcement
U.S. Department of Justice Office of Inspector General — Smart on Crime Review
Read the DOJ Inspector General’s report summary
U.S. Drug Enforcement Administration — SITSA Act Testimony
Read DEA testimony concerning synthetic drugs
U.S. Code — Federal Controlled Substances Act
Review federal controlled-substance provisions
Facing Federal or State Criminal Charges?
The attorneys at Patel Law, PC have experience representing clients facing felony and misdemeanor charges, including serious drug offenses and federal criminal matters. A criminal investigation or charge can have significant consequences, and understanding the allegations and potential penalties is an important part of protecting your rights.
