The War on Drugs is Escalating Under Biden

Today, a group of leading civil rights activists and policy experts expressed their disappointment at the inclusion of a provision in the stopgap spending bill passed by Congress that would extend the temporary classification of fentanyl-related substances (FRS) as Schedule I drugs. This classwide policy measure, which would disproportionately impact people of color through harsher criminal penalties and an expansion of mass incarceration, is widely acknowledged by public health experts as ineffective in tackling the opioid overdose epidemic. 

The measure included in the spending bill would extend until January 28, 2022, a temporary order classifying FRS — synthetic substances chemically similar to fentanyl — as Schedule I drugs. In addition to this law’s numerous flaws, such as the possibility of being imprisoned for substances that are not harmful, it has failed to make a difference in the overdose epidemic, as opioid deaths have risen dramatically since the scheduling order was first implemented by the Trump administration in 2018. Though some lawmakers have couched this’ enforcement-first, tough-on-crime’ approach as necessary to curb overdoses, fentanyl and harmful FRS are already illegal with or without classwide scheduling. 

The group calls on Congress to let the classwide scheduling policy expire and instead pass health-centered public health measures. 

“Congress cannot continue doing the same thing and expect to get different results. The move to once again extend this disastrous Trump-era policy echoes the failed drug policies of the past. Criminalization will only lead to over-policing and enforcement, disproportionately impacting people of color, and overcrowded prisons. Criminalization will not save lives. Only a commitment to health-centered policies rooted in expanding access to harm reduction and treatment can do that. This extension is a step backwards in the fight to dismantle the harms of the drug war and save lives. We call on Congress to end this policy once and for all and embrace public health measures to mitigate the overdose epidemic,” said Maritza Perez, director of the Office of National Affairs at the Drug Policy Alliance.  

“The past 50 years of failed criminal legal policy and communities torn apart by the so-called War on Drugs should be more than enough evidence for Congress to finally understand that we cannot arrest or convict our way out of a public health crisis. The continued criminalization of illicit fentanyl and fentanyl-related substances will only lead to more deaths and deepen the racial disparities evident in the criminal legal system,” said Sakira Cook, senior director of the justice reform program at The Leadership Conference on Civil and Human Rights. “Congress should take this opportunity to chart a new course forward, providing resources to impacted communities, rather than relying on old punitive enforcement tactics that do nothing to prevent the use of these substances, nor promote public health and safety. Until policymakers decide to do the right thing, we will continue to fight for laws that actually address the overdose crisis and make our communities safer.”

“The facts are clear, we can’t arrest and sentence our way out of the overdose crisis. Instead, Congress must take this growing public health crisis seriously by allowing the temporary Class I criminal scheduling of all fentanyl-related substances to expire in October 2021 and centering instead a public health approach, so that people who are at risk of dying from opioid overdose can receive life-saving medications, treatment, and prevention services. The current approach hasn’t reduced opioid drug overdoses, which continue to rise, and has had a disproportionate impact on Black and Latinx people, who were targeted in close to 70 percent of prosecutions in 2019,” said Marta Nelson, director of government strategy, advocacy and partnerships at the Vera Institute of Justice.

“The War on Drugs has devastated communities and wasted billions of dollars without any tangible benefit to public safety. The classwide scheduling of fentanyl analogues is just another failed drug policy that won’t save lives but will trap more people — disproportionately people of color — in endless cycles of incarceration. What we need now is a public health approach proven to save lives, not more of the same criminal justice responses that have expanded the stigma of drug use, pushed people into the shadows, and eroded community trust in law enforcement,” said Miriam Krinsky, executive director at Fair and Just Prosecution.

“Extension of this policy, even temporary, is a grave mistake. If the failed War on Drugs has taught us anything it’s that we can’t arrest our way out of the overdose crisis,” said Laura Pitter, deputy director of the US Program at Human Rights Watch. “Yet more criminalization is exactly what extending this policy does. Instead, Congress should be doubling down on taking a public health approach to the opioid crisis by providing people with the treatment and help they need.” 

A coalition of civil rights and drug policy reform leaders, advocates, and experts, including The Leadership Conference and Drug Policy Alliance, have come together to oppose President Biden’s recent counterproductive recommendations to permanently place fentanyl-related substances on Schedule I—a move that would put more people behind bars while doing nothing to stop overdoses, repeating mistakes of past administrations.