Fentanyl and 'fake pills': victims and prosecutors press for harsher guideline enhancements; defenders caution on mens rea removal

WASHINGTON — A major portion of the Sentencing Commission's Oct. 12 hearing centered on enhancements that would increase sentences when defendants distribute counterfeit pills or fentanyl-laced products.

The Department of Justice's witnesses said the fake-pill market is deadly and difficult to police, and urged a workable enhancement that reaches higher-level distributors and manufacturers. Kimberly Sanchez, an assistant U.S. attorney in the Eastern District of California, told commissioners the current enhancement requires both proof of a defendant's mens rea and affirmative marketing that is often unavailable; the Department proposed a hybrid approach she said would hold higher-up distributors accountable while preserving due process.

Victim testimony was a recurring and emotional part of the record. Anne Marie Portillo, who lost her daughter to a fentanyl-laced pill, said manufacturers and sellers "know what they are doing" and urged a standard that does not require proof of knowledge when fentanyl is disguised and distributed as another drug. "These people are playing Russian roulette with human lives for pennies on the dollar," she said.

Defense witnesses, by contrast, urged caution. Francisco Morales, representing defenders, argued that removing mens rea requirements would criminalize individuals who genuinely did not know their product contained fentanyl — a risk that could fall particularly hard on low-level sellers and couriers. He recounted client cases where a seller purchased what he thought was a different powder and later learned it contained fentanyl; Morales said the criminal law should remain tied to culpable mental state where practicable.

Expert and advisory groups offered compromise positions. The Probation Officers Advisory Group preferred a no-mens-rea approach (option 1) on grounds of public safety and enforcement difficulty; other groups suggested a tiered enhancement tied to proof of knowledge where available (option 3), with lower increases where knowledge cannot be established but the presence of fentanyl is proven.

Several panels also called for clearer wording of "represented" and "marketed" to reduce inconsistent application by judges. POAG representatives and practicing prosecutors warned that the enhancement as drafted can be hard to operationalize in cases where sales use coded language and encrypted communication.

Machine gun/MCD enhancements (discussed separately) and safety-valve revisions were tied into this discussion: prosecutors argued for stronger enhancements for particularly dangerous weaponry accompanying drug trafficking, while also pushing to preserve in-person safety-valve debriefings as the best evidence-gathering procedure.

The breadth of views and emotive testimony — especially from victims'family members — made the fentanyl debate one of the meeting's most contested areas. The Commission requested written follow-up on specific drafting language, the mens rea threshold, and the data on overdose-related prosecutions that would be affected by any drafting choice.