President Joe Biden is seeking to extend indefinitely a Trump-era rule on the scheduling of fentanyl analogs that facilitates harsh criminalization, despite harm reduction advocates’ demands that he reverse course.
On September 2, Biden’s acting Office of National Drug Control Policy (ONDCP) director, Regina LaBelle, presented to Congress the administration’s recommendation for “permanent scheduling of all fentanyl-related substances.”
The proposal would permanently place fentanyl analogs in Schedule I under the Controlled Substances Act of 1970, which classifies Schedule I drugs as those “with no currently accepted medical use and a high potential for abuse.” They include heroin, marijuana and LSD.
The Biden administration would be making permanent what was originally an emergency scheduling of fentanyl analogs, enacted by the Drug Enforcement Administration under President Trump in February 2018. That rule was extended twice by Congress, including under Biden in May 2021. The current extension is temporary, and will expire on October 22.
The new proposal would also task the Department of Health and Human Services with reviewing the safety of fentanyl analogs for future scheduling decisions, and with lowering barriers to conducting research on them. LaBelle and other officials argued that this plan is necessary to reduce opioid-involved deaths and encourage research into potential treatments. But the negative outcomes stand to be much more impactful.
Biden would be making permanent federal law enforcement’s power to impose the harshest criminal penalties.
Fentanyl—a synthetic opioid about 30 times more potent than heroin—is itself a Schedule II drug. It’s available legally, by prescription, for severe pain. It’s also used in hospitals, for example in treating COVID-19 patients in critical condition. But most fentanyl found in street drug supplies, or used recreationally, is manufactured in illicit labs.
Some of fentanyl’s many chemical analogs have similar effects—but most are not well researched or understood. By making permanent fentanyl analogs’ Schedule I classification, Biden would be making permanent federal law enforcement’s power to impose the harshest criminal penalties.
Potentially arbitrary factors can exacerbate this harsh sentencing: A person caught with 10 grams of heroin containing mere trace amounts of fentanyl analogs will be prosecuted as if they had 10 grams of the fentanyl analogs. Prosecutors don’t even need to prove they knew they had it.
On August 24, in advance of the latest White House announcement, a coalition of over 140 health and civil rights groups, led by the Drug Policy Alliance (DPA) and the Leadership Conference, released an open letter. It called on Biden to “let the Trump administration temporary ‘classwide’ emergency scheduling of fentanyl-related substances expire.”
“Classwide scheduling would exacerbate pretrial detention, mass incarceration and racial disparities in the prison system, doubling down on a fear-based, enforcement-first response to a public health challenge,” the letter continued. “The policy could also lead to over-criminalization and prosecutorial misconduct.”
The letter cited the case of Todd Coleman, a man who was sentenced to 10 years in prison. He sold 30 grams of cocaine, but a drug lab falsely claimed it contained three illicit fentanyl analogs. In fact, none of the substances were illicit fentanyl analogs, and two of them were not even controlled substances. But no one caught the error until two years later.
“The federal government must not repeat the decades-old mistakes it made around crack-powder sentencing disparities.”
“In some ways, the class-wide scheduling of fentanyl analogs is Drug War Theater—it makes it look like we’re ‘doing something’ about fentanyl,” Dr. Sheila Vakharia, deputy director of the Department of Research and Academic Engagement at DPA, wrote on Twitter. “Even while there’s already laws on the books at their disposal. They just don’t want to have to work to prove their cases.”
Vakharia explained that the policy puts the burden on defendants to prove that a fentanyl analog is not dangerous or illicit. Meanwhile, prosecutors and courts are given much broader power to prosecute people and impose heavy sentences.
An earlier report by DPA, which studied federal fentanyl cases since 2016, additionally found troubling disparities in enforcement. Three out of four people prosecuted were Black or Hispanic, and roughly half were low-level sellers or couriers.
Convictions for fentanyl trafficking increased 700 percent between 2016-2018, when people were sentenced on average to five-and-a-half years in prison.
“Now, more than ever, policymakers must turn to evidence and science, not fear, to find answers,” the letter concluded. “The federal government must not repeat the decades-old mistakes it made around crack-powder sentencing disparities, but rather it should follow the science and a public health strategy to address the overdose crisis.”
DPA has separately endorsed the Support, Treatment, and Overdose Prevention (STOP) of Fentanyl Act, which would fund harm reduction to address fentanyl use. Its measures include distributing more naloxone, improving substance use disorder treatment, and increasing access to medications like buprenorphine and methadone.
Photograph of federal, state and local law enforcement in Norfolk, Virginia by Office of Public Affairs via Flickr/Creative Commons 2.0.
Dr. Vakharia is a member of the board of directors of The Influence Foundation, which operates Filter. DPA previously provided a restricted grant to The Influence Foundation to support a Drug War Journalism Diversity Fellowship.
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