On March 14, the Senate passed legislation that would permanently ban fentanyl-related substances (FRS) under Schedule I of the Controlled Substances Act. S. 331, better known as the Halt All Lethal Trafficking (HALT) of Fentanyl Act, would escalate the mass incarceration crisis by fast-tracking prosecution of cases involving any substance with a chemical structure similar to fentanyl, even if the substance is inert.
The Senate approved the legislation by a vote of 84-16. The House already advanced a similar version in February. The Senate bill next heads back to the House so representatives can vote on the most recent version. Once they pass it, which they will, it next goes to President Donald Trump’s desk to await his signature. He is expected to sign it.
The HALT Fentanyl Act also cleared the House when it was introduced during the previous congress, but at that time it didn’t have enough support in the Democrat-majority Senate to make it to a vote. Now, in addition to Republicans holding the Senate majority, the Act has picked up more bipartisan support.
FRS have been temporarily banned under Schedule I since 2018, with legislators extending the deadline over and over shortly before the ban was set to expire. The current expiration date is March 31.
Permanent class-wide bans are not the norm. This legislation would bypass the Drug Enforcement Administration and Food and Drug Administration rulemaking process for scheduling controlled substances, allowing new FRS to be placed under Schedule I automatically. (Fentanyl itself would remain in Schedule II.)
Rather than having to produce evidence that a particular FRS is harmful, prosecutors would just have to show that it is an FRS. This will make it a lot less work to convict someone, which in turn will make prosecutors inclined to pursue a lot more of these cases.
The Act would also establish broad quantity-based mandatory minimum sentences for FRS-related convictions. People convicted on distribution charges involving more than 10 grams could not be sentenced to less than five years in prison, and not less than 10 years if they had a prior conviction. For cases involving more than 100 grams, the mandatory minimums for a first-time conviction would be 10 years; for a second conviction, 20 years.
Distribution is often prosecuted at the federal level. Federal agencies have often justified FRS mandatory minimums by saying that they “will deter manufacturers and traffickers.” They won’t, because mandatory minimums have never worked as a deterrent for any criminalized activity.
What they will do is streamline the mass incarceration of local-level drug users and sellers, who get coerced into plea deals under the threat of these longer sentences. Mandatory minimum cases disproportionately target Black men convicted on relatively minor charges.
The temporary bans have already been in place for seven years, during which time fentanyl and FRS became more prevalent in the supply, not less. In 2018, when the first FRS were banned under Schedule I, the annual overdose death count was 67,367. In 2022 it reached 107,941.
Meanwhile, there are currently 62,744 people in federal Bureau of Prisons facilities serving time for drug-related convictions—close to 44 percent of all prisoners in BOP custody. None of this legislation is ever about getting drugs off the streets; just people.
Top image via Drug Enforcement Administration. Inset graphic (cropped) via Government Accountability Office.