The House of Representatives voted 320–88 on Wednesday evening to extend a federal ban on fentanyl and its analogs, despite the dissenting votes and voices of 86 Democrats.
The bill, S.3201, passed the Senate unanimously, but languished in the House for almost two weeks, running dangerously close to a Feb. 6 deadline after which the Drug Enforcement Administration's blanket scheduling of fentanyl and its analogs was set to expire. Such a lapse would have made it substantially harder for federal law enforcement to prosecute dealers of the drugs responsible for tens of thousands of deaths over the past several years.
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Even as they debated the bill Wednesday morning, however, some House Democrats still voiced concerns over a bill they saw as too tough on crime. Such arguments, alongside the dissenting vote from within the Democratic caucus, raise serious questions about Democrats' commitment to using all tools available to fight the deadliest drug crisis in American history.
There are a number of different chemical variations—called "analogs"—of the synthetic opioid fentanyl. In 2018, faced with a wave of new analogs, many of which were not technically illegal under the Controlled Substances Act, the DEA used its administrative authority to temporarily place them all in schedule one, the strictest control category in the CSA.
That scheduling lasts only two years, which is where S.3201 comes in. The bill—which, according to a Senate GOP aide, was "watered down" from a full ban—extends the scheduling by a year and instructs the Department of Justice to issue a report on the effects of continuing it further. This version passed the Senate unanimously, and garnered the support of law enforcement officers across the political spectrum, including all 50 state attorneys general.
The bill's extended stay in the House is due to Democratic opposition even to the weakened version. House Democrats managed to kill a similar provision in last December's spending bill. On Wednesday it became apparent why House Democrats have been largely mum on the issue, as several caucus members indicated that they believed that enabling law enforcement to prosecute drug traffickers was a dangerous and wrong-headed approach.
"Let's not enact another law that sends more people to prison while ignoring the root causes of the present crisis, which is substance abuse and which should be dealt with as a public health problem," Rep. Bobby Scott (D., Va.) said. "That's the approach we should take, and we can take that approach by rejecting this bill."
Others, like Rep. Jan Schakowsky (D., Ill.), cited fears of the increased use of mandatory minimums in fentanyl trafficking, which she said "even the lowest quantity can trigger."
"The emergency scheduling of fentanyl and its analogs, or any other substance as a schedule one drug, has serious criminal justice implications. We should not forget our history, and what happened to communities of color during the failed war on drugs," Schakowsky said.
According to the U.S. Sentencing Commission, 433 people faced fentanyl trafficking charges in 2018, when the DEA's temporary scheduling was put into effect. The average sentence length was roughly six years, with almost half of offenders receiving less than five years. While half were convicted of an offense carrying a mandatory minimum, half of those were "relieved of that penalty." In fact, thanks to such relief, the average fentanyl sentence was shorter than what sentencing guidelines suggest it should be.
While fentanyl traffickers contribute a small share of the federal prison population and enjoy comparatively lenient sentences, the scheduling of fentanyl has been a vital tool for law enforcement. Bob Bushman, president of the National Narcotics Officers' Associations' Coalition, which represents more than 55,000 law enforcement officers nationwide, told the Washington Free Beacon that "if there is no way to control or slow up the distribution and the use of these drugs, we're going to continue to see the deaths and the addiction problems we're seeing."
"A few years ago, we weren't dealing with this problem on this magnitude," Bushman said. "Being able to schedule [fentanyl], being able to prosecute people that are trafficking these substances, is important. But we need help from our elected officials to put the proper laws in place to allow us to have some effective strategies to deal with this problem. We can't just make up laws."
Rep. Greg Walden (R., Ore.), who helped lead the Republican effort to pass the bill, on Wednesday criticized his Democratic colleagues for acting slowly.
"There is no question that fentanyl poses an absolutely deadly threat to American lives, yet it took Democrats until the 11th hour to extend the fentanyl analogues ban," Walden said. "Thanks to pressure from patients, families, law enforcement, and communities everywhere, House Democrats finally joined the Senate and House Republicans in passing the fentanyl analogues ban. We can only hope that the next time lives hang in the balance, we won't have to wait until the last minute for Democrats to act."