Nearly 100 Groups Oppose Biden’s Plan to Make Misguided Temporary Drug Criminalization Policy Permanent

October 22, 2021                                                                                        

Speaker Nancy Pelosi                                                      
1236 Longworth H.O.B.                                               
Washington, DC 20515                                                      

House Majority Leader Steny Hoyer
H-107, The Capitol
Washington, DC 20515

House Minority Leader Kevin McCarthy
2468 Rayburn H.O.B.
Washington, DC 20515

Senate Majority Leader Charles Schumer
322 Hart S.O.B.
Washington, DC 20510

Senate Minority Leader Mitch McConnell
317 Russell S.O.B.
Washington, DC 20510

Chairman Frank Pallone
House Energy & Commerce Committee
2125 Rayburn H.O.B.
Washington, DC 20515

Ranking Member Cathy McMorris Rodgers
House Energy & Commerce Committee
1035 Longworth H.O.B.
Washington, DC 20515

Chairman Jerrold Nadler
House Judiciary Committee
2141 Rayburn H.O.B.
Washington, DC 20515

Ranking Member Jim Jordan
House Judiciary Committee
2141 H.O.B.
Washington, DC 20515

CC: President Joe Biden, The White House; Vice President Kamala Harris, The White House; Attorney General Merrick B. Garland, Department of Justice; Acting Director Regina LaBelle, Office of National Drug Control Policy; Secretary Xavier Becerra, Department of Health and Human Services

Re: Opposition to the Biden-Harris Administration’s Recommendations to Congress on Fentanyl-Related Substances

Dear Speaker Pelosi, Majority Leader Schumer, Majority Leader Hoyer, Minority Leader McConnell, Minority Leader McCarthy, Chairman Frank Pallone, Ranking Member Cathy McMorris Rodgers, Chairman Jerrold Nadler, Ranking Member Jim Jordan, and Honorable Members of the U.S. Senate and House of Representatives:

We, the undersigned criminal justice, civil rights, drug policy, health policy, faith-based and advocacy organizations, in the interests of justice and public health, write today to urge you to reject the Biden-Harris Administration’s recommendations to Congress on fentanyl-related substances (“Biden FRS Proposal”)[1] because it leans on law enforcement, not evidence-based public health solutions, to solve the overdose epidemic. The classwide scheduling of FRS has been in effect since 2018 and overdoses have nonetheless skyrocketed.[2] In contrast to proven public-health solutions, classwide scheduling is not science based and will set a harmful precedent by endorsing preemptive and overbroad drug criminalization. It is time to center a public health approach rooted in expanding access to harm reduction and treatment instead of the same ineffective approach of arrest and incarceration. In August of this year, more than 140 organizations from across the country wrote to President Biden urging the Administration to allow the temporary classwide emergency scheduling of fentanyl-related substances (“FRS”) to expire and instead embrace public health solutions to the overdose epidemic.[3] Our coalition continues to stand by our previous position and urges Congress to allow the temporary classwide emergency scheduling of FRS to expire and swiftly move legislation that is rooted in public health.

Overall Solution Must Be Grounded in Public Health

We are deeply distressed that the Administration’s proposal advocates for the permanent classwide scheduling of FRS by continuing to rely on outdated, failed tactics all while failing to provide any evidence-based solutions rooted in harm reduction and treatment. Any solution to the overdose epidemic must center on public health solutions. The Administration’s announcement minimizes the potential harms that will flow from classwide scheduling, and touts President Biden’s laudable commitment to funding public health responses to substance use. But there is simply no evidence that classwide scheduling or increased enforcement works to reduce illicit drug supply or rates of overdose and addiction.

Last year was the deadliest year on record for fatal overdoses. Provisional estimates suggest that over 93,000 people died of preventable overdose in 2020, the highest amount ever recorded in a year.[4] Synthetic opioids, including fentanyl and fentanyl analogues, were involved in over 60 percent of overdose deaths.[5] Overdose rates involving these substances have steeply risen in the past decade, increasing nearly 40 percent from June 2019 to May 2020.[6] Seventeen states and the District of Columbia experienced a 50 percent or greater increase in fentanyl and fentanyl analogue overdose deaths in the same time period,[7] even though the temporary classwide scheduling policy has been in place since 2018. People of color have disproportionately suffered from overdose deaths involving fentanyl and fentanyl analogues, with non-Hispanic Blacks facing the highest increase in synthetic opioid-related deaths.[8] Between 2014 and 2017, the death rate among non-Hispanic Blacks involving synthetic opioids increased 818 percent.[9]

The only way to tackle a public health issue of this magnitude is to invest in public health solutions. The Biden FRS Proposal will not save lives or make the public safer. Rather, perpetuating the broad criminalization of these substances will only push people who use drugs further into the shadows where they will be more likely to encounter untested substances that increase their risk of overdose.[10] Criminalization also creates a chilling effect on people calling for emergency services, should they or someone else need them, for fear of being arrested or otherwise penalized.[11] Fifty years of evidence and a parallel upswing in overdose deaths have disproven enforcement-first solutions.

Now is the time to commit to evidence-driven responses with proven results: public health solutions focused on harm reduction and treatment. Congress must provide individuals with access to life-saving tools and education, including greater access to naloxone to prevent overdose deaths, evidence-based treatment and recovery services, medications like methadone and buprenorphine to treat opioid use disorder, syringe services programs, overdose prevention programs, education campaigns, and drug checking tools so that individuals are able to test the content of substances before consuming them. These are just some public health strategies that we know save lives. Public health policies grounded in harm reduction and expanding access to treatment must be the centerpiece of Congressional action on the overdose crisis.[12]

Criminal Justice & Civil Liberties Concerns

Harms of Mandatory Minimums & Criminalization

We oppose the Administration’s insistence on criminalizing a broad and undefined swath of substances of varying potency as a strategy to address overdose and addiction. In an unparalleled break from fifty years of drug control precedent, classwide scheduling endorses the Schedule I placement and prosecution of a large group of substances based on their chemical structure alone, with no checks in place to ensure that those substances are actually harmful. Without these checks, fentanyl-related substances without the potential for abuse are certain to end up improperly on Schedule I.[13]

While the Administration claims its policy avoids quantity-based mandatory minimums, the policy will still lead to harsh criminal penalties. Criminalization will create a chilling effect on people calling for emergency services for fear of facing criminal justice consequences, meaning people will die from preventable overdose. And even if individuals receive shorter sentences than the mandatory minimum under Biden’s proposal, they will still be imprisoned and risk being trapped in a vicious cycle of incarceration which impacts an individual’s access to housing, education, employment, health services, food assistance programs and more.

Further, the Biden FRS Proposal still advocates for mandatory minimums in instances where death or serious bodily injury can be directly linked to the FRS that was trafficked. This exemption is akin to drug-induced homicide laws, which have become more prevalent across the country as a misguided response to the overdose epidemic. There is not a shred of evidence that these laws are effective at reducing overdose fatalities. In fact, despite aggressive prosecution of drug-induced homicide cases, death tolls continue to climb across the country, even in the states and counties leading in the prosecution of these cases.[14] As a Drug Policy Alliance report on drug-induced homicide laws noted: “Underlying these [prosecution] efforts are fundamental misperceptions about fentanyl distribution; namely, that the people selling it are aware that they are selling it and are purposefully poisoning those they sell it to.”[15] The report goes on to describe that in truth, “the vast majority of street-level drug sellers, as well as the family, friends, and acquaintances who share their drug supplies, likely do not know that their supply contains fentanyl or a related substance.”[16]

Moreover, the Biden Administration has been aggressively moving new FRS to Schedule I individually, where prosecutors can continue to seek mandatory minimums even if its FRS policy fails.[17] Further, close study of the legislative text supporting the Biden proposal reveals that it would, in fact, explicitly expand mandatory minimums to apply to fentanyl analogues prosecuted under the Federal Analogue Act. It is important to note that even without mandatory minimums, the U.S. Sentencing Guidelines set severe recommended ranges for cases involving fentanyl analogues.[18]

Miscarriages of Justice

Shockingly, the Biden FRS Proposal accepts that classwide scheduling will inevitably misclassify some drugs as Schedule I, and that some people might wrongfully be prosecuted for those substances. Rather than reject this overreach, the Administration adopts an essentially guilty-until-proven-innocent approach. This is the antithesis of how the U.S. criminal justice system should operate and is creating dangerous new precedent.

The Biden Administration attempts to solve the overbreadth of classwide scheduling by creating a “streamlined” proposal to remove substances misclassified on schedule I through classwide schedules. But even with expedited procedures in place, mustering the scientific and medical support to remove a substance from Schedule I is a formidable task--particularly where no scientific or medical assessment has taken place prior to scheduling. Surely, individuals in the criminal legal system will not have access to the scientific and research resources needed to “prove” that a substance is not actually harmful or to navigate the administrative requirements of even streamlined descheduling. Second, even if they are able to clear that hurdle, individuals who have been wrongly convicted will then have to file a motion to seek a reduced sentence, requiring notice that a substance has been removed, access to counsel, and the resources to litigate. It is highly likely that under the Biden FRS proposal, individuals will be subjected to harsh penalties for substances that have no place on Schedule I, and substances will improperly remain on Schedule I.

There is already at least one public example of the dangers of a broad approach to criminalization. Todd Coleman, of Ohio, was wrongfully subjected to a 10-year mandatory minimum because a prosecutor improperly charged him with distributing a fentanyl analogue. Mr. Coleman was sentenced to a mandatory minimum of 10 years for selling 30 grams of cocaine--about 2 tablespoons--because a local lab said they were laced with controlled fentanyl analogues.[19] But none of the substances were controlled fentanyl analogues, and one was a substance called “Benzyl Fentanyl” that the Drug Enforcement Administration has long known is not dangerous or illegal.[20] The Biden FRS Proposal is knowingly opening the floodgates to more false prosecutions and miscarriages of justice. This is unprecedented, and sets the stage for further overcriminalization and overenforcement in response to emerging substances. As a general principle, if Congress chooses to impose harsh penalties on individuals, it must be clear and specific about what is or is not illegal.

Moreover, the Biden FRS proposal does not provide for retroactivity for past prosecutions of individuals pursuant to the temporary classwide scheduling policy. While the Administration claims that only eight cases were prosecuted with FRS charges from the time temporary class scheduling was adopted in 2018 through December 2020,[21] anecdotal evidence suggests that the data it cites is incomplete, and that other cases exist. 

Prosecutorial Authorities Already Exist 

Classifying all fentanyl analogues as Schedule I substances is unnecessary for federal prosecutions of these cases. The federal government already has authority to “prosecute anyone who possesses, imports, distributes, or manufactures any unscheduled fentanyl analogue with a high potential for abuse, no medical value, and the ability to cause overdose deaths.”[22] The Federal Analogue Act provides the Department of Justice (DOJ) a path to prosecute illicit manufacturing or distribution of any fentanyl-related substances.[23] Additionally, the Drug Enforcement Administration (DEA), in coordination with relevant federal agencies, already has separate authority to schedule substances swiftly, albeit on a temporary basis.

The DOJ’s and DEA’s claim that the classwide scheduling authority is necessary for an effective enforcement response to fentanyl analogues and rising overdose deaths does not hold water. In addition to the classwide scheduling policy, between 2015 and 2019, prosecutions for federal fentanyl offenses increased by 3,592% and fentanyl-analogue prosecutions increased by 5,725%.[24] In 2018, the DOJ launched the “Operation Synthetic Opioid Surge (S.O.S.) program, which prosecutes “every readily available case involving fentanyl, fentanyl analogues, and other synthetic opioids, regardless of the drug quantity.”[25] Despite this aggressive ramp-up in enforcement and three years of classwide scheduling, “deaths from synthetic opioids—the biggest killer—were up by 52% year-on-year in the 12 months to August [2020], the last month for which data are available.”[26]

Law enforcement has repeatedly claimed that the classwide ban has reduced the supply of fentanyl-related substances, but no independent entity has borne this out. Instead, the U.S. Government Accountability Office (GAO) concluded it could not draw causal conclusions related to classwide scheduling[27] due to the short time the ban had been in place and various other factors that could lead to a reduction of these substances. Indeed, the GAO noted that “the number of reports of all fentanyl analogues and other related compounds (e.g., precursors), including individually scheduled analogues, have increased since the implementation of class-wide scheduling.” [28]

Racial Disparities Will Persist

The racially disparate enforcement of drug laws against communities of color will continue under the Biden FRS Proposal. In 2019, 68 percent of those sentenced for fentanyl analogues were people of color, and enforcement has targeted minimally involved individuals and street-level dealers in its fentanyl-analogue enforcement efforts, rather than kingpins, importers, or manufacturers.[29] Nonetheless, the Biden FRS Proposal fails to include a mandatory study detailing the impact of fentanyl analogue convictions on racial disparities in the criminal legal system nor a study analyzing the types of charges filed against individuals in fentanyl analogue cases.

Negative Impacts on Research and Future Drug Scheduling

While the Biden FRS Proposal claims to expand the research of Schedule I substances to help advance evidence-based public policy, an untold number of fentanyl-related substances will still be treated as Schedule 1 drugs under the policy which will have a chilling effect on research. Schedule 1 status will mean that researchers will have to jump through administrative hoops to study FRS.[30] Moreover, Schedule 1 status means that some researchers will fear legal consequences for studying these substances or may not able to afford the cost-prohibitive nature of gaining access to this research. This will lead to a situation where only well-funded researchers will have access to these substances for study. All of this hinders scientific progress in finding solutions to the overdose epidemic, drug addiction, and other medical issues.

An April 2021 GAO study found that the DEA’s use of a classwide approach “preemptively includ[es] an unknown number--potentially thousands--of substances that have not yet been identified by DEA and which may not have been developed.”[31]  Because chemical structure can’t predict effect, the class control improperly criminalizes substances that are harmful, helpful, or benign. Scientific research has already identified specific substances that have little to no pharmacological potential for abuse—some even have therapeutic promise.[32] Under classwide control, whether a substance is harmful, helpful, or benign is irrelevant.

Now, more than ever, policymakers must turn to evidence and science, not fear, to find answers. 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. Enforcement-first responses to drug policy, including classwide drug scheduling of fentanyl analogues, have only entrenched racial disparities in the criminal legal system and locked in tougher sentences, without reducing overdose deaths.[33] These responses deter scientific research and ignore the root causes of the overdose crisis, thwarting any meaningful public health solutions.[34] The most effective ways to address the overdose crisis are evidence-based public health and harm reduction approaches. Such approaches are supported by nearly two-thirds of Americans, who believe drug use should be addressed as a public health issue and not as a criminal justice issue.[35]

Thank you for your time and attention to this matter. Please contact Maritza Perez, Director of the Office of National Affairs of the Drug Policy Alliance, at mperez@drugpolicy.org for questions about this letter or to further discuss this matter.

Sincerely,

A New PATH (Parents for Addiction Treatment & Healing)
Advocating Opportunity
AIDS United
Alianza for Youth Justice
All Saints Episcopal Church
American Civil Liberties Union
AMERSA, Inc.
Autistic Self Advocacy Network
Being Alive - LA
Brave Technology Cooperative
Broken No More
CAN-DO Foundation
Cascade AIDS Project & Prism Health
Center for Disability Rights
Center for Health and Justice Transformation
Center for Living and Learning
Center for Popular Democracy
Church of Scientology National Affairs Office
Community Health Project Los Angeles
Community Medical Services
Congregation of Our Lady of Charity of the Good Shepherd, U.S. Provinces
CURE (Citizens United for Rehabilitation of Errants)
DanceSafe
Desiree Alliance
Drug Policy Alliance
Elevyst
EXPONENTS, Inc.
Fair and Just Prosecution
Faith in Public Life
Federal Public and Community Defenders
Florida Harm Reduction Collective Inc
Friends Committee on National Legislation
Full Circle Recovery Center
GRASP
Harm Reduction Action Center
Harm Reduction Sisters
Hawaii Health and Harm Reduction Center
Healing Equity and Liberation (HEAL) Organization
Health Equity Alliance
Hep Free Hawaii
HIPS
Housing Works
Human Rights Watch
InterReligious Task Force on Central America and Colombia
Jewish Council for Public Affairs
JustLeadershipUSA
LatinoJustice  
The Leadership Conference on Civil and Human Rights
Legal Action Center
Michael Galipeau Consulting
NASTAD
National Advocacy Center of the Sisters of the Good Shepherd
National Association of Criminal Defense Lawyers
National Council of Churches USA
National Council on Alcoholism and Drug Dependence
National Employment Law Project
National Harm Reduction Coalition
National Health Care for the Homeless Council
National Pain Advocacy Center
NC Survivors Union
New York State Harm Reduction Association
NEXT Distro
Opportunities People's Justice Leaders
PAIN
People's Action
Prison Policy Initiative
Rights & Democracy NH
Rights & Democracy VT
River Valley Organizing
Showing Up for Racial Justice Ohio
Shriver Center on Poverty Law
Smoky Mountain Harm Reduction
Southern Tier AIDS Program
Sponsors, Inc.
Stay Focused Movement
StoptheDrugWar.org
Students for Sensible Drug Policy
Substance Use Policy Education and Recovery PAC
Texas Center for Justice and Equity
The Freedom BLOC
The Hepatitis C Mentor and Support Group, Inc. - HCMSG
The Sentencing Project
The Taifa Group
Truth Pharm Inc.
Tzedek Association
UnHarming Ohio
URGE: Unite for Reproductive & Gender Equity
Vera Institute of Justice
VICTA
Vivent Health
VOCAL-NY
VOCAL-WA
Washington Office on Latin America (WOLA)
Whose Corner Is It Anyway
Wilkes Harm Reduction Collective