On May 23, a coalition of 20 national advocacy organizations sent an open letter to President Biden, criticizing his support for the Halt All Legal Trafficking of Fentanyl (HALT) Act (HR 467), which has just passed the House.
The HALT Act is a response by lawmakers to the overdose crisis and the prevalence of fentanyl-related substances—which have structural similarities to fentanyl, but are mostly little understood and not demonstrated to be harmful. The act essentially makes it easier to arrest and incarcerate people for possessing unknown drugs. It also stacks on heavy mandatory minimum prison sentences. And in doing so, advocates say it will deter people from accessing harm reduction resources or emergency aid.
A May 22 White House statement supported passage of the HALT Act, saying, “The Administration calls on Congress to pass all of these critical measures to improve public safety and save lives.”
“Your Administration’s statement fails to condemn the HALT Fentanyl Act’s expansion of mandatory minimums,” reads the advocates’ letter in response, “and encourages Congress to throw its support behind legislation that will only exacerbate the harms of illicit drug activity and will do nothing to further the public health solutions urgently needed. We ask your Administration to issue a clear statement against the HALT Fentanyl Act and we ask Congress to vote no on this legislation.”
The letter’s signatories include the National Association of Criminal Defense Lawyers, the Law Enforcement Action Partnership (LEAP), Families Against Mandatory Minimums and the Drug Policy Alliance (DPA), among many others.
“This has been a huge priority for the majority in the House. Republicans are using fentanyl to score political points, so I don’t think this is the end of it.”
The HALT Act is an entirely Republican-led effort, with 52 cosponsors in the House. The House passed the HALT Act on May 25, by a vote of 289-133, with 74 Democrats in support. To actually make it law, Republicans will also need the support of Democrats in the Senate, and Biden. But if Republicans paint Democrats as being “pro fentanyl” or “weak” on the overdose crisis, they might find leverage ahead of the 2024 election cycle.
“This has been a huge priority for the majority in the House,” Martiza Perez, director of DPA’s Office of Federal Affairs, told Filter. “Republicans are using fentanyl to score political points, so I don’t think this is the end of it. Fortunately, in the Senate we do have some great allies who understand this policy is problematic and that we need public health interventions to mitigate the overdose epidemic.”
Fentanyl itself is a Schedule II controlled substance. While it’s best known for its association with overdose deaths through the adulterated illicit drug supply, it’s also a vital medicine for use in surgery and treatment for cancer and COVID-19.
But there exist large numbers of other substances—thousands, experts believe—that are chemically related to fentanyl. Some of these fentanyl-related substances (FRS) are also cropping up in the illicit drug supply. Many are not currently classified or controlled by federal drug law. They may have similar effects to fentanyl—or entirely different ones, or none at all. In most cases, scientists simply don’t know. Researchers have identified only around 40 of them, and tested only a handful for their effects.
Under President Trump, the Drug Enforcement Administration (DEA) temporarily classified all fentanyl-related substances in Schedule I, meaning drugs “with no currently accepted medical use and a high potential for abuse.” Congress has repeatedly extended this emergency scheduling for limited periods. But the Biden adminstration, among others, wants to make it permanent.
There are numerous problems with this approach, which bypasses existing scheduling procedures. The Controlled Substances Act of 1970 creates a process for deciding which drugs should be controlled on an individual basis. Under existing law, the DEA or Health and Human Services (HHS) can ask for an investigation into a new drug, to understand its effects and potential benefits or harms. The DEA collects data, which it then sends to HHS to ask for a medical and scientific evaluation. HHS must get input from the Food and Drug Administration (FDA), National Institute on Drug Abuse (NIDA) and even the wider scientific community before it makes a decision.
The federal government can shortcut this process as a temporary measure—for example, in 2011 the DEA scheduled five synthetic cannabinoids (including “Spice” and K2) for one year while it began a review and considered permanent scheduling.
But the HALT Fentanyl Act applies a blanket ban to myriad different drugs without requiring basic research on each of them. And that very research would be made impossible—or at minimum, very difficult—by placing these substances permanently into Schedule I. Scientists cannot research or produce Schedule I drugs unless they have a special license from the DEA and follow strict guidelines. The DEA is notorious for stifling such research.
“Punishing FRS through mandatory minimums is particularly egregious … a vote for HALT is a vote for policies that will worsen racial disparities in American sentencing.”
This matters because we have no knowledge of the properties of most FRS. Some may be highly potent opioids with similar effects to fentanyl. Some could actually block the opioid receptor and reverse overdose. And some are likely to have no effect at all. In other words, we can’t make any assumptions based on a molecule’s similarity to fentanyl—but that’s exactly what the HALT Fentanyl Act does.
“The FDA testified to Congress that they had found at least one substance that behaved like naloxone,” Perez said. “That makes sense because in order for naloxone to work and counter the effect of harmful opioids, you need ‘good’ opioids. This policy is treating them as all equally bad and ignoring the fact that some hold therapeutic potential.”
The bill then requires harsh mandatory minimum sentences for possession, sale or trafficking of these substances. Distribution of just 10 grams of FRS would carries a sentence of at least five years in prison, and distribution of 100 grams at least 10 years.
DPA points out that fentanyl-analog enforcement already has racist outcomes that would be worsened by the HALT Act. In fiscal year 2021, Black defendants made up over 61 percent of people sentenced for fentanyl trafficking by federal courts, and nearly 25 percent of defendants were Latinx.
Advocates have long condemned mandatory minimum sentencing laws in general, which prevent judges considering all mitigating factors in a case and inevitably lead to people facing much longer prison sentences.
“Punishing FRS through mandatory minimums is particularly egregious,” states the letter. “The racial disparities in fentanyl-analogue trafficking are shocking, and a vote for HALT is a vote for policies that will worsen racial disparities in American sentencing.”
The letter points out that Biden’s own proposal for addressing fentanyl—now a bill in Congress called the Save Americans from the Fentanyl Emergency (SAFE) Act, prevents mandatory minimums for emergency-classified FRS, and creates a pathway for any individual substance to be either delisted or rescheduled, as considered appropriate.
However, even that bill would still have mandatory minimums for unscheduled fentanyl substances, using the Federal Analogue Act as justification.
Why is Biden now endorsing legislation that contradicts his own policy platform?
“We noticed that language from the moment the Biden admin put out their proposal,” Perez said. “We tried to get clarity on if that was an oversight, and we never received a response. That tells me they’re fine with it and it may in fact have been intentional. They’re not quite honest when they say their proposal doesn’t include mandatory minimums, because it does.”
Biden campaigned for president on promises to end mandatory minimums and pursue racial justice. So why is he now endorsing legislation that contradicts his own policy platform?
DPA is instead supporting alternative legislation, describing it as “the first step toward putting science and facts first.” The Temporary Emergency Scheduling and Testing of Fentanyl Analogues (TEST) Act would extend classwide scheduling of FRS for two years—but importantly, it requires the federal government to actually test them.
Other fentanyl-related bills on the table include the Support, Treatment and Overdose Prevention of Fentanyl (STOP) Act, which would collect data on FRS and support treatment and harm reduction services. The Reentry Act, meanwhile, would mandate that all people receive access to Medicaid and medication for opioid use disorder 30 days before leaving prison, to address the heightened overdose risk among this population.
“The public-safety and public health case against any form of permanent FRS scheduling is overpowering,” the letter states. “Permanent FRS scheduling will do nothing to redress the fentanyl overdose crisis. All it will do is hinder scientific research into lifesaving overdose-prevention treatments, make individuals less likely to seek help, and inflict harsh punishments on people who use drugs.”
Update, May 25: This article has been updated to reflect the House passing the HALT Act on May 25.
The Influence Foundation, which operates Filter, previously received a restricted grant from DPA to support a Drug War Journalism Diversity Fellowship. LEAP was previously the fiscal sponsor of The Influence Foundation. Filter’s Editorial Independence Policy applies.