More than 140 Groups Urge DOJ to End Over-Criminalization of Fentanyl-Related Substances

August 24, 2021 The Honorable Merrick Garland United States Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530 Dear Attorney General Garland: The 142 undersigned organizations write to urge the Biden administration to let the Trump administration’s temporary “classwide” emergency scheduling of fentanyl-related substances expire on October 22, 2021. We also write to reiterate our request[1] to the administration that it engage more stakeholder feedback with the interagency working group that is studying this topic before it finalizes its recommendation to Congress on the classwide scheduling issue. Since the extension of the classwide policy in April 2021, our coalition has been granted just a half-hour “listening” session with some representatives from the interagency working group. That time did not allow a robust, two-way discussion on this complicated policy issue.

The administration’s policymaking process on this issue has largely occurred behind closed doors, and we deserve a government that is both transparent and responsive.

The classwide scheduling policy must expire. Classwide scheduling would exacerbate pretrial detention, mass incarceration, and racial disparities in the prison system, doubling down on a fear-based, enforcement-first response to a public health challenge.

The policy could also lead to over-criminalization and prosecutorial misconduct. Under the classwide control, any offense involving a “fentanyl-related substance” is subject to federal criminal prosecution, even if the substance in question is helpful or has no potential for abuse. Failure to define with specificity through our laws what is or is not illegal will lead to miscarriages of justice. Take, for example, the case of Todd Coleman. Mr. Coleman was sentenced to a mandatory minimum of 10 years for selling 30 grams of cocaine — about 2 tablespoons — because a local lab said they were laced with three illegal fentanyl analogues.[2] But none of the substances were illegal fentanyl analogues, and one was a substance called “Benzyl Fentanyl” that the Drug Enforcement Administration has long known is not dangerous or illegal. What is more, the classwide scheduling policy will fail to curb overdose rates in the United States. In the past few years, synthetic drugs such as fentanyl and its analogues have been responsible for overdose deaths in many parts of the country.[3] These overdose deaths form a part of a broader wave of mortality associated with unemployment, alcohol poisoning and suicide, circumstances related to working class economic decline and mental health challenges.[4] Focusing on drug interdiction does not address the root cause of these overdoses. Skyrocketing prosecutions and criminal penalties have done nothing to stem the tide of these deaths, or to reduce the supply of harmful substances in our country.[5] Relying on jails to force individuals into painful, involuntary, and often unsafe withdrawal is not the solution. In fact, the classwide scheduling policy will hurt public health and scientific research aimed at finding solutions to the overdose crisis.[6] Classwide scheduling allows for an overbroad classification of fentanyl analogues under Schedule 1, including those that may have medical or research value and could be critical to finding solutions to the overdose crisis. Nor will classwide scheduling curtail the supply of fentanyl and its analogues. Despite repeated claims by law enforcement that the classwide ban has reduced the supply of fentanyl-related substances, the U.S. Government Accountability Office (GAO) could not evaluate this claim due to the short time the ban had been in place and various factors that could lead to a reduction of these substances. Because of those variables, the GAO did not draw causal conclusions related to classwide scheduling[7] but noted that “the number of reports of all fentanyl analogues and other related compounds (e.g., precursors), including individually scheduled analogues, have increased since the implementation of class-wide scheduling.”[8] Now, more than ever, policymakers must turn to evidence and science, not fear, to find answers.

The federal government must not repeat the decades-old mistakes it made around crack-powder sentencing disparities, but rather it should follow the science and a public health strategy to address the overdose crisis. Enforcement-first responses to drug policy, including classwide drug scheduling of fentanyl analogues, have only entrenched racial disparities in the criminal legal system and locked in tougher sentences, without reducing overdose deaths.[9] These responses deter scientific research and ignore the root causes of the overdose crisis, thwarting any meaningful public health solutions.[10] The most effective ways to address the overdose crisis are evidence-based public health and harm reduction approaches. Such approaches are supported by nearly two-thirds of Americans, who believe drug use should be addressed as a public health issue and not as a criminal justice issue.[11] The Biden administration must seize this opportunity to take a new course on drug policy. It must not reverse the progress it has made on harm reduction and instead maintain its commitment to ending mandatory minimums and pushing forward policy that promotes racial equity. We welcome further dialogue with you and your staff about how to move forward on this important topic. However, we must reiterate our firm opposition to “classwide” emergency scheduling, whether temporary or permanent. We request as well that we be allowed to review and provide feedback on the administration’s proposal before it is distributed to Congress. Thank you for your time and attention to this matter. Please contact Maritza Perez of the Drug Policy Alliance at mperez@drugpolicy.org, or Sakira Cook of The Leadership Conference on Civil and Human Rights at cook@civilrights.org for questions or concerns. Sincerely, A Little Piece Of Light A New PATH (Parents for Addiction Treatment & Healing) AIDS United Alliance for Living American Civil Liberties Union AMERSA, Inc. Arizona Recovers Arkansas Community Organizations Autistic Self Advocacy Network Baltimore Harm Reduction Coalition Being Alive - LA Black and Pink Massachusetts Black Led Organizing Collaborative Brennan Center for Justice at NYU School of Law Bright Heart Health California Society of Addiction Medicine CARMAhealth Casa de Salud Cascade AIDS Project Center for Disability Rights Center for Embodied Spirituality Center for Living and Learning Center for Optimal Living Center for Popular Democracy Central Texas Harm Reduction Centro Latino Americano Church of Scientology National Affairs Office College & Community Fellowship Community Alliance on Prisons Community Catalyst Community Health Project LA Congregation of Our Lady of Charity of the Good Shepherd, U.S. Provinces CURE (Citizens United for Rehabilitation of Errants) DanceSafe De-escalate Ohio Now HeartbeatMovement Incorporated Desiree Alliance Dream Corps JUSTICE Drug Policy Alliance Drug Policy Forum of Hawaii Due Process Institute Elevyst Exponents Inc. EYEJ: Empowering Youth, Exploring Justice Fair and Just Prosecution Faith in Public Life Federal Public and Community Defenders Florida Harm Reduction Collective Friends of Guest House Friends of Safehouse GLIDE GoodWorks: North AL Harm Reduction GRASP/Broken No More Harm Reduction Action Center Harm Reduction Ohio Harm Reduction Sisters Harm Reduction Therapy Center Hawaii Health & Harm Reduction Center Healing Equity and Liberation (HEAL) Organization Health Equity Alliance HealthRIGHT 360 Hep Free Hawaii Hepatitis C Mentor And Support Group-HCMSG HIPS Hoosier Action Housing Works Human Rights Watch IBW-ACTION Idaho Harm Reduction Project Jewish Council for Public Affairs Justice Strategies JustLeadershipUSA LA Community Health Project LatinoJustice PRLDEF Law Enforcement Action Partnership The Leadership Conference on Civil and Human Rights Live4Lali Maine Drug Policy Lab at Colby College Maine People's Alliance Martinez Harm Reduction Collective Minneapolis Students for Sensible Drug Policy Muid and Muid Associates NASTAD National Advocacy Center of the Sisters of the Good Shepherd National Association of Criminal Defense Lawyers National Association of Social Workers National Council of Churches of Christ in the USA (NCC) National Council on Alcoholism and Drug Dependence-Maryland National Employment Law Project National Harm Reduction Coalition National Health Care for the Homeless Council National Immigration Project (NIPNLG) New Jersey Policy Perspective NEXT Harm Reduction/NEXT Distro Nurses for Responsible Healthcare Ohio Families Unite Against Police Brutality Ohio Transformation Fund Ohio Women’s Alliance Open Aid Alliance Oregon Working Families Party P.A.I.N. Partnership for Safety and Justice Peer Network Of New York People's Action R Street Institute Rights & Democracy New Hampshire Rights & Democracy Vermont River Valley Organizing / UnHarming Ohio Showing Up for Racial Justice Ohio Southern Poverty Law Center Action Fund Southern Tier AIDS Program Sponsors, Inc. SSDP UC Berkeley St. Ann's Corner of Harm Reduction St. James Infirmary StoptheDrugWar.org Students for Sensible Drug Policy Substance Use Policy, Education, and Recovery PAC Texas Criminal Justice Coalition The Levenson Foundation The Mountain Center The People's Harm Reduction Alliance The Perfectly Flawed Foundation The Sentencing Project The Seven Challenges The Taifa Group Transgender Resource Center of New Mexico Transitions Clinic Network Truth Pharm Tulane University Tzedek Association Unitarian Universalist Justice Ohio Unity Fellowship of Christ Church NYC Urban Survivors Union Vera Institute of Justice VICTA Virginia Harm Reduction Coalition Vivent Health VOCAL-NY VOCAL-WA Washington Office on Latin America (WOLA) Wilkes Recovery Revolution WV Citizen Action [1] On Friday, July 16, 2021, individuals from some of our organizations met with staff from the Department of Justice (DOJ), including staff from the Office of the Attorney General, Office of the Deputy Attorney General, and the Drug Enforcement Administration to discuss the classwide scheduling policy. On July 20, 2021, we first made the request to the DOJ, via email communication, to meet with the interagency working group and contribute to the administration's policy proposal before it goes to Congress. We followed up on this request, via email, on July 30, 2021. On August 5, 2021, our coalition was granted a half-hour meeting with representatives from the interagency working group and the administration, including officials from the Office of National Drug Control Policy (ONDCP), DOJ, the White House Domestic Policy Counsel, and the White House Counsel’s Office. [2] Schwartzapfel, Beth. “Biden could have taken the war on drugs down a notch. He didn’t.” The Marshall Project. June 16, 2021. https://www.themarshallproject.org/2021/06/16/biden-could-have-taken-the-war-on-drugs-down-a-notch-he-didn-t. [3] “Overdose Death Rates.” National Inst. of Drug Abuse. Last updated Jan. 29, 2021. https://www.drugabuse.gov/drugtopics/trends-statistics/overdose-death-rates. [4] Graham, Carol. “America’s crisis of despair: A federal task force for economic recovery and societal well-being.” Brookings. Feb. 10, 2021. https://www.brookings.edu/research/americas-crisis-of-despair-a-federal-task-force-foreconomic-recovery-and-societal-well-being/. [5] Centers for Disease Control and Prevention, National Center for Health Statistics, National Vital Statistics System, Provisional Drug Overdose Death Counts, 12 Month-ending Provisional Number of Drug Overdose Deaths by Drug or Drug Class January 2015 through July 2020, Synthetic opioids excluding methadone (T40.4), https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm; Shover, Chelsea L., et al. “Steep increases in fentanyl-related mortality west of the Mississippi River: Recent evidence from county and state surveillance.” Drug Alcohol Depend. Nov. 1 2020. 216: 108314. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7521591; Fang, Emily. “We are shipping to the U.S.: inside China's online synthetic drug networks.” National Public Radio. Nov. 17, 2020. https://www.npr.org/2020/11/17/916890880/we-are-shipping-to-the-u-s-china-s-fentanyl-sellers-find-new-routes-todrug-user. [6] See Letter from Senators Richard J. Durbin, Michael S. Lee, Sheldon Whitehouse, Amy Klobuchar, Christopher A. Coons, Mazie K. Hirono, Cory A. Booker, Kamala, D. Harris to The Hon. Alex M. Azar II, Secretary, U.S. Dep’t of Health and Human Services. Jul. 10, 2019. https://www.durbin.senate.gov/imo/media/doc/Letter%20to%20DOJ%20HHS%207.10.pdf. [7] “GAO-21-301SU, Synthetic Opioids: Considerations for Class-wide Scheduling of Fentanyl-Related Substances.” U.S. Gov’t Accountability Office. April 2021. Pg. 31 n. 10. https://www.gao.gov/products/gao-21-499. [8] Id. at 52 n. 9. [9] Madden, G. J. “Ammunition for Fighting a Demand-Side War on Drugs: A Review of Contingency Management in Substance Abuse Treatment.” J. Appl. Behav. Anal. 2008. 41(4): 645-651; Centers for Disease Control and Prevention. “Provisional Drug Overdose Death Counts” Jul. 14, 2021. https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm#drug_specificity. An in-depth analysis of fentanyl analogue sentencing from the United States Sentencing Commission in fiscal year 2019 found that 70 percent of those sentenced for fentanyl analogues were Black or Latinx. U.S. Sentencing Commission. “Fentanyl and Fentanyl Analogues: Federal Trends and Trafficking Patterns.” Jan. 2021. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2021/20210125_Fentanyl-Report.pdf. [10] See Letter from Senators Richard J. Durbin, Michael S. Lee, Sheldon Whitehouse, Amy Klobuchar, Christopher A. Coons, Mazie K. Hirono, Cory A. Booker, Kamala, D. Harris to The Hon. Alex M. Azar II, Secretary, U.S. Dep’t of Health and Human Services. Jul. 10, 2019. https://www.durbin.senate.gov/imo/media/doc/Letter%20to%20DOJ%20HHS%207.10.pdf.; Collins, M., & Vakharia, S. “Criminal Justice Reform in the Fentanyl Era: One Step Forward, Two Steps Back.” Drug Policy Alliance. 2020. https://drugpolicy.org/sites/default/files/dpa-cj-reform-fentanyl-era-v.3_0.pdf. [11] Franklin, D. “Overwhelming Majority Say War on Drugs Has Failed, Support New Approach.” Drug Policy Alliance. June 2, 2021. https://drugpolicy.org/sites/default/files/bpi-aclu_wod_public_release_memo_060221_updated_002_002.pdf. .

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References:

• https://www.themarshallproject.org/2021/06/16/biden-could-have-taken-the-war-on-drugs-down-a-notch-he-didn-t
• https://www.drugabuse.gov/drugtopics/trends-statistics/overdose-death-rates
• https://www.brookings.edu/research/americas-crisis-of-despair-a-federal-task-force-foreconomic-recovery-and-societal-well-being/
• https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm
• https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7521591
• https://www.npr.org/2020/11/17/916890880/we-are-shipping-to-the-u-s-china-s-fentanyl-sellers-find-new-routes-todrug-user
• https://www.durbin.senate.gov/imo/media/doc/Letter%20to%20DOJ%20HHS%207.10.pdf
• https://www.gao.gov/products/gao-21-499
• https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm#drug_specificity
• https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2021/20210125_Fentanyl-Report.pdf
• https://drugpolicy.org/sites/default/files/dpa-cj-reform-fentanyl-era-v.3_0.pdf
• https://drugpolicy.org/sites/default/files/bpi-aclu_wod_public_release_memo_060221_updated_002_002.pdf