A temporary control on the deadly opioid fentanyl and its analogs is set to expire next week, but a legislative fix has been stalled by House Democrats amid fears the law is too tough.
The House of Representatives is expected to vote Wednesday on S.3201, more than two weeks after the bill unanimously passed the Senate. The bill would extend for one year the designation of fentanyl and related super-potent opioids as "schedule one," the strictest classification under the Controlled Substances Act, that is set to expire on Feb. 6. But House Democrats—who killed a similar plan in last year's appropriations bill—have been slow to act, and during a hearing on Tuesday instead voiced concerns about "overcriminalization" and the overuse of mandatory minimums.
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Such objections highlight how Democrats' criminal justice reform priorities may be at odds with the law enforcement needed to combat the deadliest drug crisis in American history. Failing to pass an extension may mean leaving the drug enforcement authorities without a key tool that they say has helped reduce trafficking—meaning more lives will doubtless be at risk.
Fentanyl is a synthetic opioid, produced predominantly in laboratories in China. The drug has increasingly saturated the U.S. illicit narcotic market, driving drug overdose rates to their highest point in U.S. history. Part of what makes the drug attractive to traffickers is that, because it is synthesized, it has a number of "analogs"—drugs with the same effect but slightly different chemical structure, meaning that those who traffic them can dodge laws that prohibit substances on the basis of their chemical makeup.
To address this issue, in 2018 the DEA used its administrative authority to temporarily designate all fentanyl analogs as schedule one drugs, trafficking of which incurs harsher penalties. But that administrative designation only lasts two years—Congress legally has to act to renew it.
Now, with just weeks to go, S.3201 is an attempt to do so. A GOP Senate aide told the Washington Free Beacon that the Senate bill was "watered down like crazy," offering only a temporary extension of fentanyl's scheduling in order to appease Democratic concerns. It also instructs the Department of Justice to prepare a report on the effect of scheduling, seeking input from groups including "the civil rights and criminal justice reform communities."
But even that "watered down" bill has moved slowly in the Democrat-controlled House. On Tuesday, the House Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on the bill, which offered House Democrats, previously mum on the issue, an opportunity to voice their opinions.
While some, like Rep. Sheila Jackson Lee (D., Texas), said they believed fentanyl and its analogs need to remain schedule one, others expressed doubts. Subcommittee chair Karen Bass (D., Calif.) said she was concerned that federal sentencing guidelines related to fentanyl may mean "many defendants who are not high-level traffickers may be unnecessarily subjected to mandatory minimums that in fact become life sentences," and noted that DOJ may be able to still prosecute individuals under a related piece of legislation, the Federal Analogue Act.
Rep. Madeleine Dean (D., Pa.), although not outright condemning the bill, put her issues in starker terms.
"I want to avoid the overcriminalization," Dean said. "I want to avoid the overuse of mandatory minimums where it is not appropriate. I want to protect the ability to do research."
These concerns reflect those noted in a Washington Post editorial endorsing the bill. They may also be why House Democrats killed a first attempt at extending the scheduling. In December, there was bipartisan support for including an extension in the annual spending bill, a House GOP aide told the Free Beacon, but "House Democrats objected to [the extension] being included, so it was not."
Rep. John Ratcliffe (R., Texas), the subcommittee's ranking member, slammed his colleagues on Tuesday for their simultaneous silence and inaction.
"I think the reason we haven't heard any public opposition from members about this is that, quite frankly, it's hard to publicly stand up and oppose extending the scheduling of fentanyl analogs," Ratcliffe said. "It's crazy to think that the reason we're in this position is that some in Congress are concerned that convicted drug traffickers would spend a little extra time in jail."
While Democrats decide how or if to move forward on extending a ban on America's deadliest drug, their inaction has caused alarm within the law enforcement community. DOJ drug enforcement official Amanda Liskamm told the committee Tuesday that DEA's temporary scheduling has had "significant" positive impacts since its implementation. In particular, she cited a 50 percent decline in reports of fentanyl and analogs seized by police following the implementation of comprehensive scheduling.
This may be why S.3201 has the remarkably bipartisan backing of all 50 state attorneys general, and why the Department of Justice has waged a campaign to get it passed, including an opinion piece from Attorney General William Barr placed in the Washington Post.
"If the House fails to act by midnight on February 6, traffickers of deadly opioids will again have the upper hand," Deputy Attorney General Jeffrey Rosen said Tuesday. "This cannot be allowed to happen. The House of Representatives needs to act to help save Americans from more overdoses and deaths."