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Biden's Embrace of Trump-Era Fentanyl Ban 'Threatens to Repeat Past Missteps,' Critics Warn

One expert urged policymakers to "rethink these efforts to double down on fear-based, enforcement-first approaches, and instead invest in public health alternatives."

Paul Harkin, director of harm reduction at GLIDE, speaks with a person on an alleyway that is popular with people who use drugs on February 3, 2020. Harkin provides narcan, fentanyl detection packets, and tinfoil to people struggling with addiction as a part of outreach on the streets of San Francisco. (Photo: Nick Otto/Washington Post via Getty Images)

Paul Harkin, director of harm reduction at GLIDE, speaks with a person on an alleyway that is popular with people who use drugs on February 3, 2020. Harkin provides narcan, fentanyl detection packets, and tinfoil to people struggling with addiction as a part of outreach on the streets of San Francisco. (Photo: Nick Otto/Washington Post via Getty Images)

After the Biden administration this week expressed support for a seven-month extension of a Trump-era policy imposing harsher sentences on people caught with synthetic painkillers containing fentanyl and fentanyl-related substances, public health advocates warned against doubling down on a fear-based and enforcement-first approach to drug use that perpetuates harmful effects and racial injustices.

"If they choose to extend this Trump-era policy, it will increase mass incarceration and the over-policing and incarceration of people of color."
—Hillary Shelton, NAACP

"We can't keep doing the same thing over and over expecting to get different results, and yet that is exactly what the administration is doing when it comes to fentanyl," said Grant Smith, deputy director of the Office of National Affairs for the Drug Policy Alliance, in a statement.

Emphasizing the need to learn from past mistakes, Smith noted that "we've seen how this story plays out, specifically with crack cocaine in the 1980s. Law enforcement-driven, media-perpetuated hysteria results in severe mandatory minimum sentences and extreme racial disparities."

As HuffPost reported Wednesday:

At issue is the classification of fentanyl, a drug the Centers for Disease Control has highlighted as a key reason fatal opioid overdoses spiked to 88,000 in the 12-month period ending in August 2020, a 23% increase over the year before. The drug, which is more powerful than morphine and used legally as a pharmaceutical to treat patients in severe pain, had long been classified as Schedule II, making unauthorized use or manufacture illegal.

Starting in 2018, the Trump administration began an emergency classification of fentanyl and its analogues―a wide selection of drugs with similar chemical structures―as Schedule I drugs, meaning possession and distribution now carry harsher mandatory minimum sentences. Congress extended that classification in early 2020, and it's set to expire in early May.

Former President Donald Trump's criminalization of all variants of fentanyl "failed to prevent a dramatic surge in overdose deaths while expanding the use of mandatory minimum sentencing laws that contribute to mass incarceration," noted Truthout's Mike Ludwig.

Nevertheless, fear-mongering by drug enforcement advocates like former Attorney General Bill Barr—who last year published an op-ed asserting that "illegal labs in Mexico and China stand ready to flood the United States with... a legalized poison" if Congress failed to reauthorize "the legal prohibitions on the various forms of fentanyl"—has enabled Republicans to suggest, erroneously, that allowing the Trump administration's temporary class-wide fentanyl ban to expire endangers the public.

According to The Intercept, the soon-to-expire Trump-era policy "gives the Drug Enforcement Administration (DEA) unlimited power to determine the legality of substances while cutting scientists and public health experts out of the conversation. This limits their ability to study certain prohibited drugs, which can prove crucial for developing therapies."

On Monday, a spokesperson for the White House Office of National Drug Control Policy told RealClearPolitics that President Joe Biden would support an extension but wants to "address legitimate concerns related to mandatory minimums and researcher access to these substances."

"The administration takes the May 6 deadline seriously and will work with Congress to seek a clean, seven-month extension to prevent this important law enforcement tool from lapsing," the official said.

Reuters reported Tuesday that the U.S. Department of Justice has also expressed support for prolonging the DEA's crackdown on fentanyl and its chemical look-alikes. 

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Extending the Trump administration's scheduling order for fentanyl and its copycat versions requires congressional action. As Bloomberg Government noted, the House Energy and Commerce Committee on Wednesday considered a GOP-led bill to make permanent the temporary classification of fentanyl-like substances.

As The Intercept reported earlier this week:

Biden ran on a platform that included criminal justice reform and an end to mandatory minimum sentencing, a practice he helped establish during his time as a senator in the 1980s and '90s. Criminal justice and drug policy advocates say extending the Trump policy would be an abandonment of those promises and a return to the kinds of strategies that escalated the war on drugs, mass incarceration, and the opioid epidemic. Current laws impose a five-year mandatory minimum sentence, and a 40-year maximum sentence, for selling substances with trace amounts of fentanyl analogues in a mixture weighing between 10 and 100 grams...

Advocates wonder why the Biden administration would go out of its way to extend a policy that would mark a return to the harsh drug sentencing laws from which the president has tried to distance himself, and even in some cases, apologized for pursuing.

During a call with reporters on Monday, Hilary Shelton, a policy director at the NAACP, said: "The Biden administration and leaders of Congress are faced with their first major test of criminal justice reform... If they choose to extend this Trump-era policy, it will increase mass incarceration and the over-policing and incarceration of people of color."

Last week, a coalition of over 100 drug policy, civil rights, criminal justice, and public health organizations sent a letter (pdf) urging Congress and the Biden administration to let Trump's emergency classification of fentanyl expire and "instead support legislation grounded in public health and evidence-based approaches to illicit fentanyl-related overdose deaths."

"Our country is repeating past missteps when it comes to policy responses to fentanyl and its analogues," the coalition wrote. "In the 1980s, policymakers enacted severe mandatory minimums for small amounts of crack cocaine in response to media headlines and law enforcement warnings that perpetuated mythology and fear."

"In the ensuing decades," the coalition added, "people of color have been disproportionately incarcerated and sentenced to mandatory minimum sentences for small amounts of crack cocaine. 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."

"Any further extension of the Trump administration's class-wide scheduling policy," the groups warned, "threatens to repeat past missteps with crack cocaine that policymakers are still working to rectify."

"As we approach the 50-year milestone of President Nixon's announcement of the war on drugs, there is ample evidence that these unscientific policies destroy communities, entrench racial disparities, and do nothing to reduce drug supply or demand."
—Coalition letter

The coalition added that "as we approach the 50-year milestone of President Nixon's announcement of the war on drugs, there is ample evidence that these unscientific policies destroy communities, entrench racial disparities, and do nothing to reduce drug supply or demand."

Smith of the Drug Policy Alliance said Wednesday that "at a time when policymakers are finally achieving progress on undoing these past harms, it's incomprehensible how they could even consider putting new laws on the books that have the potential to recreate this pain and devastation on Black, Latinx, and Indigenous communities all over again."

"Make no mistake, these communities are the ones that have always borne the brunt of the drug war, and fentanyl will be no different," Smith added. "In fact, it's already happening in the astronomical rise of fentanyl-related prosecutions we have seen thus far."

As the coalition's letter pointed out: "Between 2015 and 2019, prosecutions for federal fentanyl offenses increased by nearly 4,000%, and fentanyl-analogue prosecutions increased a stunning 5,000%. There are significant racial disparities in these prosecutions, with people of color comprising almost 75% of those sentenced in fentanyl cases in 2019. This holds true for fentanyl analogues, for which 68% of those sentenced were people of color."

In his statement, Smith said that "we call on Congress and the administration to rethink these efforts to double down on fear-based, enforcement-first approaches, and instead invest in public health alternatives, such as the STOP Fentanyl Act being considered in the House, which provides a comprehensive health and evidence-based response to fentanyl and fentanyl-like substances."

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