This week, the drug policy reform movement averted disaster after a deeply damaging SITSA Act –formally known as the ``Stop the Importation and Trafficking of Synthetic Analogues Act of 2017''– was excluded from a large package of bills aimed at tackling the overdose crisis. The bill would have expanded penalties on synthetic analogue drugs, similar to fentanyl, and given Attorney General Jeff Sessions broad power to schedule certain drugs and therefore set penalties. This road to victory was hard fought over the course of more than a year, and the result came about because of several communities uniting around this important cause.
In June 2017, the bill was first introduced. The drug policy and criminal justice reform movements were reeling from the appointment of Jeff Sessions as Attorney General, and his elimination of the “Smart on Crime” memo, which meant that Sessions’ prosecutors would now aggressively pursue mandatory minimum sentences for drug offenses. The threat of a crackdown on marijuana legalization loomed large. Against that backdrop, SITSA was introduced. The scope of the bill – allowing the Attorney General broad powers to unilaterally decide which drugs should be scheduled – was unprecedented for any time, let alone a moment when the Trump Administration was so intent on escalating the drug war. We had to fight back.
The popularity of criminal justice reform was a boon to our cause. In previous Congresses, Republicans and Democrats in both chambers had worked together to advance legislation that reduced sentences for drug offenses, and many recognized that – despite the overdose crisis – we cannot incarcerate our way out of this problem. So it was up to those of us in the criminal justice reform community to point out to legislators the contradiction – how can you be for sentencing reform and support SITSA?
Media attention on the bill highlighted the flaws in the “lock-em up” approach to synthetic analogue drugs. As NPR aptly noted, “For nearly four years now, an unusual coalition of Republicans and Democrats has worked to reduce mandatory prison terms for many federal drug crimes. But that bipartisan movement may be shallower than it appears. Indeed, Republican Sen. Chuck Grassley of Iowa and Democratic Sen. Dianne Feinstein of California, who both supported a cut-back on some drug punishments, are preparing a bill that would create tough new penalties for people caught with synthetic opioid drugs.” The Washington Post wrote, “Congress is considering a bill that would expand Jeff Sessions’ power to escalate the war on drugs.”
Another community that was engaged were supporters of Kratom – a herbal substance used by people with chronic pain and opioid use problems. Under the bill, Kratom would almost certainly be banned, and tough penalties would apply to anyone who used the substance. From day one, Kratom supporters pressured their members of Congress to oppose the bill.
Despite the negative media and advocate pushback, the bill moved out of the House Judiciary Committee in July 2017. At a hearing on the bill, Democrats expressed opposition with seasoned former prosecutor and DPA Board Member Angela Pacheco testifying that it would do nothing to reduce overdose deaths and only serve to increase the prison population. Despite strong opposition, however, the bill advanced, shepherded by Judiciary Chair Bob Goodlatte (R-VA).
Many in the scientific community were also opposed to the bill, citing concerns that the Attorney General would schedule drugs without regard for science, and that SITSA would create similar barriers to scientific research as those encountered by researchers interested in studying Schedule I drugs. The scientific community arranged for a respected witness to testify at a separate House hearing, who spoke to these concerns and said SITSA was unnecessary.
One year later, in June 2018, the House finally moved SITSA for a vote on the floor. Once again, a wide variety of groups rallied in opposition, with DPA, Human Rights Watch, the Sentencing Project, Families Against Mandatory Minimums, Freedom Works, and more sending letters opposing the bill. Nevertheless, the bill passed the House in a largely party-line vote.
The attention now was on the Senate. The House had moved the bill with ease, and it was added to the chamber’s opioid package. Although the Senate had never even held a hearing on the bill, it was likely that the bill’s sponsors – Feinstein and Grassley – would want to move the bill as part of the Senate’s opioid package and SITSA would become law.
We targeted champions of sentencing reform on the Judiciary Committee, pointing out how SITSA went against these core beliefs. On the Democrat side, ceding such power to Jeff Sessions was seen as misguided, while for some Republicans, the bill gave too much power from the legislative branch to the executive branch. It became clear to Senators who supported SITSA that adding the bill to the opioid package was going to be difficult, given the lack of support from the Senate Judiciary Committee. Accordingly, we got our first win, keeping the bill out of the Senate opioid package.
The next hurdle was the biggest. Negotiations were to take place in September on a final opioid package. The negotiations were over the opioid package of bills. The House and Senate had to reconcile differences before passing the same legislation in each chamber. SITSA was in the House version of the opioid package, but not in the Senate version. Usually, it would be a 50/50 decision, except at the negotiating table were four people – Sens. Feinstein and Grassley (the lead sponsors of SITSA), and Bob Goodlatte - chair of the House Judiciary Committee that approved the bill one year prior, and a vocal proponent of SITSA. Rep. Nadler (D-NY) was the lone person at the table who opposed the bill. The odds were heavily stacked against us.
Nonetheless, we rallied. We sent letters from conservatives, progressives, and law enforcement opposing the addition of SITSA in the final package. We asked members of the Senate Judiciary Committee to urge Feinstein – the top Democrat on that Committee – to oppose adding a bill the Senate had never considered. Amid the negotiations, The Washington Post published another piece with the headline, “Obscure provision in House opioids' bill could restart war on drugs” which helped underline the breadth of the opposition to the bill, quoting DPA, Freedom Works and Human Rights Watch. Crucially, we worked with you – our members – to flood Congress with emails opposing the bill. More than 30,000 emails were sent by DPA members on this legislation – a mammoth amount that moved the needle.
A day before negotiations were due to end, we learned that although Feinstein opposed including SITSA, Goodlatte threatened to blow up talks on the entire opioid package if it was not. We fought back again, redoubling our efforts to engage Senate Judiciary members to send a message to Feinstein to hold firm and not bow to Goodlatte’s demands.
Against all odds, this is what transpired. Feinstein – despite being a supporter of the bill – seemed to recognize that adding SITSA would create problems for passing the opioid package in the Senate, especially for her fellow Democrats. Alongside Nadler, Feinstein became an unlikely hero in this process, standing firm against Goodlatte’s threats. SITSA was excluded from the final bill.
But there was one last twist. At the last minute, we heard that Goodlatte wanted to call another part of the opioid package “SITSA” so that he could claim victory, even though the actual provisions of SITSA would be out. It was an extraordinarily petty move, which was once again rebuffed by Feinstein and Nadler.
The final text was released on the evening of September 25, 2018 – 15 months after the SITSA’s introduction. There was no mention of SITSA. Its exclusion was the coda to a rollercoaster ride that had lasted over a year. At a time when many legislatures across the country are responding to the threat of synthetic analogue drugs by pushing harsh penalties, we managed to pull this bill back from the brink of passage. In doing so, both the criminal justice reform and kratom community showed their might. SITSA may appear again, but we will be prepared. We won this time and we will win again.
Michael Collins is Interim Director, Office of National Affairs at the Drug Policy Alliance.