Harvard law professor: AG Barr’s drug policies echo ‘failed’ policies of the past and will not ‘end well’

Harvard law professor: AG Barr’s drug policies echo ‘failed’ policies of the past and will not ‘end well’
William Barr image by U.S. Department of Justice

Many Americans have been highly critical of the War on Drugs and the mass incarceration that it has brought — and they include not only liberals and progressives, but some right-wing libertarians as well (from former Texas Rep. Ron Paul to 2012/2016 Libertarian Party presidential nominee Gary Johnson to the staff at Reason Magazine). However, U.S. Attorney General William Barr has been moving in the opposite direction, calling for expanded mandatory minimum sentences at the federal level for crimes involving fentanyl. And Nancy Gertner, a professor at Harvard Law School and former U.S. district judge, asserts in a Washington Post op-ed that Barr’s ideas on drug policy are horribly misguided and that the War on Drugs has failed miserably.

According to the 73-year-old Gertner, Barr’s ideas “come as no surprise” in light of his “long record of hawking incarceration as a solution to our drug crisis.” Indeed, Barr was very much the drug warrior when, in the early 1990s, he served as U.S. attorney general under a previous Republican president: George H.W. Bush.

“We have seen this movie before,” Gertner laments. “It does not end well.”

Gertner explains how fentanyl differs from other drugs and how it is governed under federal law in the U.S.

“Illicit analogues are synthetic compounds that are substantially similar to Schedule I or II substances in chemical structure,” Gertner notes. “Some analogues are dangerous substances with a substantial potential for misuse. Others are benign or helpful. For example, naloxone, a life-saving antidote to opioid overdoses, is an analogue of morphine, a powerful opioid. Scientists believe that an antidote for fentanyl overdoses could well be within the substances scheduled under a proposal pending in Congress.”

Gertner adds, “The only way to tell how a drug will act in the body is through pharmacological research to measure its effect. Barr’s proposal omits that crucial step, enabling federal prosecutions in cases involving substances with no scientific research confirming the drug’s physiological effect.”

The Harvard law professor goes on to assert that while the “opioid epidemic” must be dealt with, mass incarceration isn’t the way to go about it.

“We must do everything we can to stop the opioid epidemic, but not with the failed policies of the past,” Gertner stresses. “The opioid epidemic persists despite decades of the punitive approach Barr touts. Since 2014, federal prosecutions for fentanyl have increased more than 4700%. In recent decades, such an approach has resulted only in mass incarceration — a nearly 790% increase in the federal prison population from 1980 to its peak in 2013, disproportionately impacting people of color.”

Gertner praises two Republican senators, Ohio’s Rob Portman and West Virginia’s Shelley Moore Caputo, for “introducing language intended to exclude the application of mandatory minimums for fentanyl analogues. The House should follow their lead.”

The law professor wraps up her op-ed by emphasizing that the War on Drugs will not make fentanyl-related problems any better — only increase the number of inmates in federal prisons.

Gertner asserts, “Barr is waging the same failed war…. He seeks to extend mandatory minimums without regard to their impact on people of color, let alone whether they will make our communities safer. They will not.”


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