The 2018 Bill to Lower Fentanyl Mandatory Minimums to 2 Grams

In 2018, a Senate bill would have made just 2 grams of fentanyl enough to trigger a 5-year mandatory minimum, down from 40 grams. That bill never became law. It still matters, because it shows the pull between harsher drug penalties and sentencing reform that shapes federal drug cases today.

Update (October 2026): The 2018 bill discussed below did not become law. For fentanyl itself, the trigger for a 5-year mandatory minimum is still 40 grams of a mixture, and 400 grams for 10 years. In July 2025, Congress passed a law (Pub. L. 119-26) that added "fentanyl-related substances" to the federal drug penalties. For those substances, the triggers are 10 grams (5 years) and 100 grams (10 years). See 21 U.S.C. § 841(b)(1)(A)(vi) and (B)(vi). The Justice Department's charging policy has also changed more than once since 2017.

A mandatory minimum is the lowest sentence a judge is allowed to give. The judge cannot go below it, no matter the facts, except in narrow situations set by law.

In 2018, members of both parties in Congress were working on sentencing reform. In the author's view, very harsh mandatory minimums for drug crimes had led to a major mass incarceration problem. It costs taxpayers far too much to jail so many people, and it costs many low-level drug offenders their freedom for far too long.

At the same time, the Trump administration was trying to move the conversation the other way. While many members of Congress pushed for modest reforms, some of the administration's allies wanted to increase mandatory minimums, and even make the death penalty part of drug sentencing. The author saw this as badly out of step with the facts.

The 2018 bill: from 40 grams to 2 grams

In March 2018, Senator Tom Cotton, a Republican and an ally of President Trump, and other senators introduced the Ending the Fentanyl Crisis Act. It would have lowered the amount of fentanyl that triggers a 5-year mandatory minimum from 40 grams to 2 grams.

Supporters pointed to how strong fentanyl is. It is usually concentrated and very potent, and small amounts are often used to lace heroin and some cocaine. Fentanyl is partly to blame for the sharp rise in heroin overdose deaths in recent years.

Critics worried about who would be caught. At 2 grams, many low-level sellers and users, not just major traffickers, could face a mandatory 5 years.

Do mandatory minimums work?

Many law enforcement professionals who know how drug sentencing works understand that expanding mandatory minimums does not actually take drugs off the street. Many legal scholars also asked what facts the "tough on crime" lawmakers relied on to support the bill.

In a Rolling Stone article, Ames Grawert of the Brennan Center for Justice said the Center had "never found any evidence that increasing mandatory minimum sentences works." Most research suggests prison sentences can be lowered to more reasonable levels without hurting public safety.

Prosecutors, too, often find that mandatory minimums do more harm than good. Senator Richard Blumenthal of Connecticut, a former state attorney general, has said mandatory minimums tie the hands of judges and prosecutors. Judges cannot give the sentences they think are right, because they must follow the mandatory minimum, which is usually harsh. And, Blumenthal noted, mandatory minimums have "very little deterrent effect."

The 2017 charging memo

The reaction to the fentanyl bill mirrored former Attorney General Eric Holder's reaction to a 2017 policy change. In May 2017, Attorney General Jeff Sessions broke with years of Justice Department practice. He told federal prosecutors to charge the most serious offense they could readily prove in every case. That often means charges that carry mandatory minimums.

Holder responded:

The policy announced today is not tough on crime . . . It is dumb on crime. It is an ideologically motivated, cookie-cutter approach that has only been proven to generate unfairly long sentences that are often applied indiscriminately and do little to achieve long-term public safety.

The original article cited The Washington Post as its source for Holder's statement.

Is there another way?

Other senators believe the country cannot arrest its way out of a drug epidemic. That approach has been tried, and in their view it has failed. Critics of the "tough on crime" approach also point to the billions spent on prison and say the money would do more good in drug treatment and local communities.

The author also argued that open talk of executing drug dealers under the federal "kingpin" law was far outside the mainstream, and that it would clearly violate the Eighth Amendment's ban on cruel and unusual punishment. The Supreme Court has not decided that question.

In his view, some in Congress, backed by Attorney General Sessions' policies, kept going down a well-worn "tough on crime" road that has less and less support among researchers and law enforcement professionals. The fentanyl bill was another example. He hoped Congress would stay focused on real sentencing reform, better drug sentencing rules, and steps that would actually make a difference in the drug epidemic.

The 2018 fentanyl bill showed a split that is still with us. One side wants harsher mandatory penalties. The other wants sentences that fit the person and the conduct, plus more spending on treatment.

If you are facing a fentanyl charge today

The drug amount usually drives the mandatory minimum, so it matters which substance the lab says it is and how much of the mixture was counted. Some people can also avoid a drug mandatory minimum through the "safety valve," a provision that lets the judge sentence below the minimum for certain people with limited criminal history who meet the other conditions in 18 U.S.C. § 3553(f). Ask your lawyer early whether it could apply.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.