Federal Crackdown On Fentanyl Analogues Repeats the Mistakes of the Drug War, Advocates Warn

Today, members of a House Judiciary subcommittee will hear testimony on the Drug Enforcement Administration’s temporary classification of all fentanyl analogues as Schedule 1 controlled substances. 

The DEA’s temporary order was set to expire next month, on Feb. 6. But on Jan. 16, the Senate voted to extend it for 15 months, and sent the bill to the House, which is expected to vote on it this week, according to harm reduction advocates. 

“It’s very important that we continue to keep fentanyl analogues listed as one of the most dangerous drugs in the world,” co-sponsor Lindsey Graham, a South Carolina Republican, said in a statement after the Senate vote.  

Schedule 1 substances have “no currently accepted medical use and a high potential for abuse,” according to the DEA website. Heroin, LSD, marijuana, ecstasy, and peyote are all classified as Schedule 1 substances. Fentanyl is a legal opioid prescribed to manage pain. Illegal fentanyl is often created in a lab and, sometimes unbeknownst to the user or seller, is mixed with another drug, such as heroin, according to the Drug Policy Alliance.

Normally, before scheduling a controlled substance, federal law requires that the U.S. Department of Health and Human Services research its chemical makeup, as well as its potential benefits and deleterious effects, and then recommend whether it should be scheduled and in which category. If the department finds that a drug should not be scheduled, the DEA is not permitted to place it on the schedule of controlled substances.

If the DEA is able to schedule a drug and it becomes illegal, then the government is also allowed to prosecute all crimes involving chemically similar “analogues” of the substance, provided that the government can prove that the analogue is also harmful.

The DEA’s fentanyl order, however, eliminates the government’s burden to show that an analogue is chemically similar and harmful. Instead, it temporarily classifies all fentanyl analogues as Schedule 1 controlled substances, regardless of whether they cause harm. And last year, lawmakers introduced two bills that would make the order permanent.

Harm reduction advocates have condemned these proposals which, they say, threaten to perpetuate the ineffective, racist, and destructive war on drugs. 

Yesterday, almost 70 advocacy groups, including The Sentencing Project, the Drug Policy Alliance, the ACLU, and The Leadership Conference on Civil and Human Rights, sent a letter to House Speaker Nancy Pelosi and House Majority Leader Steny Hoyer warning that, “granting the Drug Enforcement Administration class-wide scheduling authority for fentanyl analogues will exacerbate already disturbing trends in federal drug prosecutions and incarceration levels and excise public health authorities from their critical role in promulgating drug policy.”

About three-quarters of those sentenced for federal trafficking in fentanyl cases were Black or Latinx, according to “Criminal Justice Reform in the Fentanyl Era: One Step Forward, Two Steps Back,” a report released last week by the Drug Policy Alliance. The limited research that is available about the overall demographics of people who sell drugs, however, shows that white people are more likely to report selling drugs than those who are Black or Latinx. 

“Just like crack cocaine, those who will lose under the fentanyl policies currently being advanced in Congress are Black and Brown people and communities,” Kanya Bennett, senior legislative counsel for the ACLU, wrote in an email to The Appeal.

Many of those federally sentenced for trafficking fentanyl are low-level drug workers. In 2016, 52 people were federally sentenced for trafficking fentanyl, or carrying it across state lines. The United States Sentencing Commission examined data from 51 of those cases. More than half “did not seem to know they had fentanyl.” About 25 percent were “couriers/mules,” and approximately 23 percent were street level sellers. 

“They are people who are just trying to get by,” said Sakira Cook, director of the justice reform program at The Leadership Conference on Civil and Human Rights. “People who are trying to make a livelihood.”

If the scheduling is made permanent, it will also stymie research that could help treat drug use disorders and other medical conditions, according to advocates. Naloxone, which helps reverse opioid overdoses, for instance, is chemically similar to opioids. Researchers can still study Schedule 1 substances, but they face onerous restrictions imposed by the DEA. 

“We need to be making individual determinations about a substance before you’re going to put it in Schedule 1,” Kara Gotsch of The Sentencing Project told The Appeal. 

The DEA’s actions are part of a broader, dangerous trend, advocates say. Federal and state lawmakers have advocated for an increasingly punitive approach to fentanyl, even as they decrease punishments for other drug offenses. The federal First Step Act, which was signed into law in 2018, for instance, reduced penalties for a number of drug offenses. But the statute excludes those convicted of certain crimes, including trafficking fentanyl, from earning credits that could reduce their prison time. Within the last decade, more than 35 states and Washington, D.C. have enacted legislation that would impose harsher penalties on fentanyl offenses, according to the Drug Policy Alliance’s report. 

“Many legislators who support scaling back mass incarceration and the drug war are now supporting extremely harsh measures for fentanyl,” wrote the report’s authors. This contradiction, explained Sheila Vakharia, a co-author of the report, is, in part, because “we’ve exceptionalized fentanyl,” just as crack cocaine was exceptionalized in the 1980s. 

“When it’s the new drug du jour, when it’s the new panic, when it’s the new hysteria, when it’s the new phenomena that we don’t know how to react to, we fall back into that emotional place,” she told The Appeal. “We want to crack down, we want to punish, and we’re afraid, and our fear can make us do things that are otherwise irrational.”

In Kentucky in 2017, for instance, former Governor Matt Bevin, who supported a number of criminal justice reforms, signed into law a bill that makes trafficking any amount of heroin or fentanyl a Class C felony and requires that 50 percent of the sentence is served before a person is eligible for parole. According to the Kentucky Center for Economic Policy, sharing drugs with a fellow user could result in trafficking charges. In 2016, though, Bevin wrote in the Washington Times that “the archaic ‘tough on crime’ rhetoric of the 1980s is becoming a thing of the past.” 

Lawmakers reserve their harshest condemnation for people who sell or traffic fentanyl, despite the fact that many do so to support their own addictions. According to a Bureau of Justice Statistics report published in 2017, 30 percent of those in state prison for drug convictions between 2007 and 2009 said they committed their offense to support their drug use. 

Some legislators have supported executing those who sell or traffic fentanyl. Last year, federal legislators introduced the Ending the Fentanyl Crisis Act of 2019 which would subject those who are convicted of trafficking two grams of fentanyl to mandatory minimum sentences. Under current law, 40 grams trigger a mandatory minimum sentence. Last year, a Senate Judiciary subcommittee held hearings on the bill; no further action has been taken. 

“Too many of our friends, family, and neighbors are dying deaths of despair,” co-sponsor Senator Ben Sasse, a Nebraska Republican, said in a statement. “While families, schools, and churches are on the frontlines, there’s an important role for lawmakers: we need to give law enforcement the tools they need to put fentanyl traffickers behind bars.”

These types of punitive policies, advocates say, jeopardize the health of those who live with addiction, some of whom also work in the drug trade. A public health response is necessary to address their needs, according to advocates, such as supervised consumption sites where community members can use drugs under medical supervision, as well as increased access to drug-checking kits, which can help determine whether fentanyl has been mixed with another substance. 

“We believe it has to be tackled,” Cook said of the proliferation of fentanyl in U.S. markets. “But we don’t believe it has to be tackled on the backs of poor people and people of color and people who are suffering from drug addiction. That is the wrong way to go. We already learned that.”