Statement on Congress Voting to Extend Trump-Era Class-Wide Scheduling and Mandatory Minimum Sentencing of Fentanyl Analogues

Written by Sarah Noon ‘18

On Wednesday, the House of Representatives voted to extend the Trump-era scheduling of fentanyl analogues, chemically similar substances—an approach that fails to mitigate overdose deaths, to mitigate other harms associated with substance use, and expands the use of harsh mandatory minimum sentencing laws currently set to expire May 6th. Today, the Senate will vote on the House Bill to extend class-wide scheduling of fentanyl-related substances, continuing a policy that exacerbates mass incarceration and racial disparities in the system for another 15 months. 

At a time when the Supreme Court has most recently ruled in favor of harsh punishments, making it easier to sentence youth to life without parole—we must remember the War on Drugs, mandatory minimums, the decades of destruction these hard-line policies have caused—and the horrendous over-representation of people of color in the prison system, comprising nearly 75% of those sentenced for fentanyl-related cases in 2019. We urge Congress and the Biden administration to allow this failed policy to end and impose a scientific-based approach to mitigating overdose deaths. 

Fentanyl is already illegal under the 1986 Federal Analogue Act, which mandates that any substance chemically similar to a drug in Schedule I, if intended for consumption, be treated as a Schedule I drug. Continuing this policy to classify fentanyl analogues as a Schedule I substance limits research for potential medication and treatment, fuels mass incarceration, and further contributes to a growing public health crisis.

Biden helped to establish and sponsor laws in favor of mandatory minimums back in the nineties and promised as President to help eliminate mandatory minimum sentencing. Biden’s administration and Department of Justice have since expressed commitment to avoid the expiration of this legislation.

The decision to extend this policy does not stem from science, evidence, or a harm-reduction and public health-focused agenda as stated in the Office of National Drug Control Policy (ONDCP) drug policy priorities for Year One. Since 2011, 39 states have enacted harsher penalties for fentanyl analogues without evidence of reductions in overdose deaths. Enforcing hard-line sentencing of fentanyl analogues parallels the same failed policy response to the crack-cocaine crisis in the 80’s and 90’s—responsible for horrendous damage, over-surveillance, and over-policing particularly to marginalized communities and Black people. The decision highlights the continuation of a failed criminal approach to a public health challenge that epitomizes the War on Drugs. 

Syringe Service Programs (SSPs) and Supervised Consumption Services (SCS) are scientifically proven and effective community-based prevention programs providing a range of harm-reduction services, including access to and disposal of sterile syringes and injection equipment, vaccination, and testing. When we lift restrictions for sentencing and practice ending the stigma against drugs and people who use drugs—those who do seek treatment and other public health interventions for substance use disorders will be incentivized to do so by having access to services that reduce the harms of potential drug use without fear of involvement with the criminal justice system. 

We urge Congress and the Biden administration to allow this failed policy to expire on May 6th and to hold true to their promise—to uphold a public health approach on substance use and advance the practice of science-based harm-reduction services. While we had commended the Administration for their commitment to expanding access to treatment in our response to their first-year drug policy priorities—this is the Biden-Harris Administration’s and 117th Congress’ first test to keep true on their pledge to promptly and meaningfully tackle criminal justice reform. 

Read the letter SSDP signed on to along with more than 100 other organizations to Congress. Act now at our Action Center to tell Senators to end the class-wide scheduling of fentanyl analogues and help end these policies. If you would like to get more involved with our federal policy work, please email policy@ssdp.org.