DPA, The Leadership Conference, NACDL & ACLU Lead Coalition of Over 100+ Groups Urging Congress & Biden Administration to Let Class-Wide Fentanyl Ban Expire

Press Release April 9, 2021
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Matt Sutton 212-613-8026
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Washington, D.C. – Today, the Drug Policy Alliance (DPA), The Leadership Conference on Civil and Human Rights, the National Association of Criminal Defense Lawyers (NADCL) and the American Civil Liberties Union (ACLU) led a coalition of over 100 drug policy, civil rights, criminal justice and public health organizations in urging Congress and the Biden Administration not to repeat the mistakes of the past by allowing the Trump Administration’s temporary class-wide emergency scheduling of fentanyl-related substances to expire in May 2021. There will be a virtual press conference on Monday, April 12, coinciding with the release of a GAO report on the temporary fentanyl ban and ahead of the Biden Administration announcing an expected seven-month extension.

The letter argues that “class-wide scheduling would exacerbate mass incarceration and racial disparities in the prison system, doubling down on a fear-based, enforcement-first response to a public health challenge.”

This comes at a time when policymakers have been making progress undoing the harms of mandatory minimum sentencing brought about during the fear-driven, sensationalist panic around crack-cocaine in the 1980s.  The emergence of fentanyl-related substances in recent years has fueled similar waves of alarmist media and law enforcement headlines that are informed by mythology rather than science . And now, policymakers now risk repeating those very same harms when it comes to creating harsher penalties around fentanyl-related substances.

The letter points out that federal fentanyl prosecutions have increased by 3,940% and fentanyl-analogue prosecutions by 5,275% between 2015 and 2019. Despite these astronomical increases, overdose numbers have continued to climb. Criminalization has not helped reverse the overdose crisis. It has also not reversed racial disparities in prosecutions: people of color comprise 75% of those sentenced in fentanyl cases in 2019 and 68% of those sentenced for fentanyl-analogues, despite drug involvement being roughly the same across racial groups. Class-wide scheduling would further exacerbate these already devastating realities.

“In 2018, the Trump administration chose to implement a hardline anti-science policy of class-wide scheduling of fentanyl analogues rather than pursue evidence and health-based approaches to fentanyl-related overdose deaths. This policy placed on Schedule I of the federal Controlled Substances Act an entire class of substances that has chemical properties similar to fentanyl.  This, in turn, expanded the application of existing harsh laws enacted by Congress in the 1980s to newly scheduled class of fentanyl-related compounds. These laws, which will remain regardless of the legal status of class-wide scheduling, impose severe mandatory minimums and other penalties. For example, just a trace amount of a fentanyl analogue in a mixture with a combined weight of 10 grams—10 paper clips—can translate into a five-year mandatory minimum, with no evidence needed that the seller even knew it contained fentanyl. In addition, current laws impose a statutory maximum sentence of 20 years for just a trace amount of a fentanyl analogue in a mixture with a combined weight of less than 10 grams,” the letter explains.

“We have to stop looking for law enforcement responses to public health problems associated with drug use. We have nearly 50 years of evidence to show that it doesn’t work—and it just leaves more bodies, more destruction, and more pain in its wake,” said Grant Smith, Deputy Director of the Office of National Affairs at the Drug Policy Alliance. “We implore Congress and the Biden Administration to put public health and science back into the equation, so that we do not repeat the mistakes of the past that have robbed Black, Latinx, Indigenous and low-income communities of their freedom, their dignity, security and countless opportunities.”

“The Trump-era fentanyl analogue ban repeated the mistakes of the past by adopting enforcement-first tactics straight out of the failed war on drugs playbook. It also further exacerbated mass incarceration and racial disparities in the criminal-legal system, and tore apart families and communities,” said Sakira Cook, senior director of the Justice Reform Program at The Leadership Conference on Civil and Human Rights. “Congress must not perpetuate bad policy and should instead embrace a public health approach that will actually address the drug overdose crisis. We look forward to working with members of Congress to find viable solutions that build upon recent efforts to transform the criminal-legal system.”

“With decades of research and experience, we know that mandatory minimums and harsh sentencing guidelines do not curb drug use and overdoses,” said Kyle O’Dowd, Associate Executive Director for Policy at the National Association of Criminal Defense Lawyers (NACDL). “We also know that law enforcement disproportionately wield these tools against low-level offenders, who are readily replaced in the drug distribution chain, and people of color. Policymakers cannot keep ignoring these facts, neglecting the critical need for a health approach to the overdose crisis in favor of knee jerk tough-on-crime policies for the latest drug du jour. Permanent class-wide scheduling for fentanyl-like substances would exacerbate mass incarceration and racial disparities and undermine recent reform efforts that have shown so much promise.”

“As we approach the 50th anniversary of the War on Drugs, it’s now time for Congress and the Biden administration to learn the lessons of that failed war. Tough on crime laws do not make us safer and have a disproportionate impact on Black and brown communities. In fact, at the federal level, seventy-five percent of people sentenced in fentanyl cases are people of color and over half of fentanyl, prosecutions target people who need help, such as users, couriers, and street-level dealers, rather than focusing on high or even mid-level dealers. It’s time to take a public health approach to the opioid crisis,” said Aamra Ahmad, senior legislative counsel with the American Civil Liberties Union’s National Political Advocacy Department.

There will be a virtual press conference on Monday, April 12 at 3pm EST, coinciding with the Government Accountability Office (GAO)’s release of a study on the class-wide scheduling ban, and ahead of the Biden Administration’s expected announcement of a seven-month extension of the temporary ban. To attend, please RSVP here.

A young woman holds a sign that says "End the Drug War."

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