The vast majority (83 percent) of voters agree that the “War on Drugs” has been an abject failure. It has resulted in unconscionable harm to Black, Latinx, Indigenous and low-income communities. Yet despite that, Congress seems intent on ramping it up once again with increased criminalization of fentanyl-related substances (FRS).
In fact, as we reach National Fentanyl Awareness Day on May 9—when law enforcement and prevention-focused groups are likely to dominate coverage—Congress has introduced no fewer than seven bills this session that would permanently place FRS in Schedule I of the Controlled Substances Act. Doing so will subject people to the highest possible mandatory minimum sentences.
What happened? The answer is fear. Rampant misinformation surrounds the very mention of fentanyl.
The same drug-scare tactics that gave us the 100:1 sentencing disparity between crack and powder cocaine are making a grand reentrance. Evidence-based policies supporting harm reduction and substance use disorder treatment are being pushed aside in favor of efforts to criminalize an entire class of unresearched drugs. What happened?
The answer is fear. Rampant misinformation surrounds the very mention of fentanyl. It is spurred by headlines claiming that any kind of contact with fentanyl is enough to cause an overdose. Nearly 80 percent of law enforcement officers believe they are extremely likely to overdose by inhaling or touching fentanyl.
This misinformation is reflected in legislation like S. 261, the Protecting First Responders from Secondary Exposure Act of 2023, which would fund training and equipment to prevent fictional secondary exposure through officers touching fentanyl. This claim is not only ridiculous and unscientific, but bolsters the drug-war tactics that have resulted in the incarceration and stigmatization of hundreds of thousands of people.
To understand why FRS are the target of Congress’s most recent criminalization spree, it’s important first to understand what these substances are. A fentanyl-related substance refers to any unscheduled substance with a similar chemical structure to fentanyl. It is estimated that there are thousands of possible FRS. Fewer than 40, however, have actually been identified by the government, and of those, even fewer tested for harm.
Proponents of classwide scheduling of FRS rely on the oversimplified chemical hypothesis of structure-function relationships.
Yet these myriad substances all fall under the so-called “classwide scheduling policy of FRS” initiated by President Trump in 2018. The policy triggers harsh criminal penalties for all FRS, regardless of how much—or how little—is known about them. While the Trump policy was temporary, Congress has repeatedly decided to extend it, and has now introduced multiple bills to make it permanent.
While proponents of classwide scheduling of FRS claim that they are all bound to be potent opioids like fentanyl, their claim relies on the oversimplified chemical hypothesis of structure-function relationships. This is the notion that what a chemical molecule looks like can predict its effects.
In reality, the opposite can be true. Naloxone, the overdose reversal drug, is itself a close relative of the natural opioid morphine. However, the definition of FRS doesn’t require that a substance in the class be proven even to have a pharmacological action, much less to cause a high.
In fact, the FDA believes it may already have discovered FRS with similar effects to naloxone. And NIDA research shows that at least some FRS are likely not to be biologically active at all. Criminalizing FRS will put a halt to critical research that could save thousands of lives by producing a new response to today’s overdose crisis.
Even more urgent are the criminal justice implications of criminalizing an entire class of substances. Almost all of the FRS criminalization bills currently in Congress would increase mandatory minimum sentences for distribution of FRS. Proponents of these bills argue that the mandatory minimums are necessary for deterrence—an argument contradicted by the entire history of the drug war and the overdose crisis. Broad application of criminal penalties for FRS is a recipe for disaster.
People have already been penalized for selling harmless substances. In the years since FRS were temporarily scheduled, arrests for trafficking and selling fentanyl analogs have risen annually, even though supporters of criminalization claim that scheduling these substances will reduce supply. We already know that many people charged as “drug dealers” are themselves struggling with substance use disorder. Increasing mandatory minimum sentences for FRS will only further harm individuals and communities—and above all, communities of color—by subjecting people to devastating prison sentences instead of supporting their access to any help and support they may need.
Playing whack-a-mole by scheduling new substances as they appear is never going to prevent the influx of newly developed and potentially more potent drugs.
Most importantly, despite temporary scheduling resulting in increased criminalization and FRS seizures, overdose deaths continue to rise in the United States. And even if the US were successful in reducing FRS supply, it would only increase demand for other, potentially even more potent drugs like nitazines, new synthetic opioids or other “designer” drugs.
Playing whack-a-mole by scheduling new substances as they appear is never going to prevent the influx of newly developed and potentially more potent drugs. This is explained by the Iron Law of Prohibition, which finds that increasingly harsh criminalization causes people to gravitate toward more potent substances in order to avoid detection.
No amount of scheduling will solve the overdose crisis, because criminalization fails to address social drivers of problematic drug use, including, for example, lack of access to health care and supportive permanent housing. What it will do is increase the harms of mass incarceration, and prevent people who use drugs from accessing harm reduction or emergency care.
But this moment doesn’t have to become just another failed chapter in the drug war that has already decimated so many communities and resulted in the unprecedented loss of life we are currently experiencing.
While permanent scheduling of FRS has bipartisan support, S. 5167—the Test Act of 2022, introduced by Sen. Cory Booker (D-NJ)—offers a promising response to FRS through testing, research and criminal-legal system reforms. It plainly counters drug panic with evidence.
Meanwhile, H.R. 2366—the STOP Fentanyl Act, introduced by Reps. Ann Kuster (D-NH) and Lisa Blunt Rochester (D-DE)—proposes in-depth strategies to end the overdose crisis, centering evidence-based harm reduction policies from naloxone and test strips to syringe service programs and overdose prevention centers.
Criminalizing FRS is just another backward step in response to the latest in a long line of drug scares. Such moves have repeatedly increased barriers to people being able to access the critical health services they need—and, as a result, have perpetuated the overdose crisis.
To save lives, we must move policy away from criminalization and toward compassionate, effective strategies grounded in public health.
Image of structure of 3-phenylpropanoylfentanyl via Wikimedia Commons/Public Domain
The Drug Policy Alliance, for which the author formerly worked, previously provided The Influence Foundation, which operates Filter, with a restricted grant to support a Drug War Journalism Diversity Fellowship.