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The Lowdown

Biden Could Have Taken the War on Drugs Down a Notch. He Didn’t.

A little-noticed law could make it easier to punish people for low-level drug crimes — and put them in prison for longer with less proof.

On May 4, 2021, President Joe Biden extended class-wide scheduling of fentanyl analogues through October, making it easier to go after low-level drug dealers. Critics say it will disproportionately affect communities of color.
On May 4, 2021, President Joe Biden extended class-wide scheduling of fentanyl analogues through October, making it easier to go after low-level drug dealers. Critics say it will disproportionately affect communities of color.

Last month, President Biden quietly extended a policy that critics call a betrayal of his campaign promise to end mandatory minimum sentences. The new law concerns “class-wide scheduling of fentanyl analogues.” It may sound like a wonky snooze-fest, but the measure could land more low-level drug dealers in prison for longer and with less proof than is usually required — while kingpins and chemists who manufacture and distribute these new drugs don’t tend to get caught.

An analogue is like a chemical cousin to fentanyl — similar in molecular structure, but not exactly the same. Because illegal fentanyl is made in labs (usually black market labs in China), there are almost infinite ways to tinker with its molecules, creating new drugs and staying one step ahead of the feds. As one becomes illegal, cartel chemists invent another. Class-wide scheduling makes a broad swath of analogues preemptively illegal, including substances that haven’t been invented yet — even those that could turn out to be medically useful. A handful of researchers are studying fentanyl analogues for possible new treatments for addiction to opioids — including some promising avenues for a fentanyl vaccine — but say the new law stymies research.

For years, prosecutors have had a few legal, but cumbersome, avenues to go after fentanyl copycats. To make analogues easier to prosecute, in 2018 the Drug Enforcement Administration issued a temporary order enacting class-wide scheduling. Congress has since temporarily extended the order twice, most recently on May 4. Supporters of this approach say it cuts off this game of “whack-a-mole” and removes incentives for illegal drug labs to keep inventing new analogues. Opponents of drug criminalization say it will only lead to more low-level dealers going to prison for an excessively long time and will fall disproportionately on the Black community, as evidenced by data on lopsided fentanyl analogue prosecutions so far. And in a haunting echo of the crack/cocaine disparity of the 1980s, fentanyl analogues are punished more harshly than fentanyl itself, without the science to back it. The new measure is another temporary extension, good for about six months while the administration studies the issue — so you can count on it coming up again soon.

Here’s what you need to know about the War on Drugs, fentanyl analogues edition.

What does “scheduling” mean?

Schedule I drugs, like heroin (and, incidentally, marijuana, but that’s a story for another day), are said to have high abuse potential and no accepted medical value. Placing drugs in Schedule I allows the government to prosecute people and send them to prison for possessing, making or selling them. (Schedule II drugs also have high abuse potential, but may have worthwhile medical uses — so they’re legal, but tightly regulated. Fentanyl itself is Schedule II, because doctors sometimes prescribe it for pain management.)

Scheduling is typically a long and convoluted process involving multiple government agencies. More than two dozen fentanyl analogues have already been scheduled this way, but this approach is too reactive, said Tim Westlake, an emergency physician in Wisconsin who testified in support of the new law in the House. “There’s a window between the time they’re aware something is dangerous and the time they can get it emergently scheduled. You'd have to wait until a bunch of people died.”

If an analogue isn’t scheduled, does that mean it’s legal?

Not exactly. Under a 1986 law known as the Federal Analogue Act, prosecutors can go after someone for a drug that’s not scheduled, as long as it’s “substantially similar” to a scheduled drug in both form and effect. That means its molecule would have to look like a fentanyl molecule, but it would also have to act like fentanyl in the body: making you high, and posing a high risk of addiction and overdose.

If we have the Federal Analogue Act, why is class-wide scheduling necessary?

To win a case under the Federal Analogue Act, prosecutors have to bring in chemists and other experts to prove that a substance is similar to fentanyl in form and effect. This is a lengthy process, and these cases are difficult to win: Prosecutors “have little certainty that a jury will find the substance is an analogue, though they are expending a great deal of time and resources to prosecute cases,” they told the Government Accountability Office in a recent report. But that’s as it should be, defense attorneys say: “Overcoming an individual's presumption of innocence is not intended to be convenient for the government," they told the GAO. Without the scheduling process, prosecutors have little incentive to even determine whether a drug is dangerous before locking people up for selling it, defense attorneys say.

Is there such a thing as a fentanyl analogue that’s not dangerous?

Yes. Chemicals don’t always act in predictable ways in the body, and two analogues — benzylfentanyl and thenylfentanyl — are good examples. They were scheduled in the ‘80s because they were chemically similar to fentanyl, but then un-scheduled a year later because they were found to be “essentially inactive”: They don’t cause a high, and they aren’t addictive. As a result, they were explicitly excluded from class-wide scheduling.

In fact, some fentanyl derivatives are medically useful. The anti-diarrhea medication Imodium has the same core chemical structure as fentanyl, but a few small differences in the molecule mean Imodium only acts on the opioid receptors in your gut, not your brain.

Christopher Cunningham is a medicinal chemist at Concordia University Wisconsin who works to develop anti-addiction drugs. He says that to create a treatment for overdose or addiction to fentanyl analogues, the first step in the lab is to begin with the analogues themselves. But getting a license to work with Schedule I substances for research purposes is too difficult and cumbersome a process for his small university, he says, so he has had to turn down some promising research opportunities since class-wide scheduling went into effect. “We won’t know if it’s useful until we do the tests. We can’t do the tests unless we get the stuff,” he says.

Since class-wide scheduling first passed in 2018, how have prosecutors used this new power?

Not very often. But the times they have done so have not been reassuring. In the recent government report on the subject, federal prosecutors could identify only eight cases they’ve brought for an analogue that wasn’t already scheduled, from among almost 400 fentanyl analogue cases in the previous year.

In addition to those eight cases, federal defenders also found at least three people prosecuted for crimes involving benzylfentanyl, one of the analogues that is not dangerous or illegal.

A crime lab said that 30 grams of cocaine that Todd Coleman had sold were laced with illegal fentanyl analogues, but they were mistaken.

A crime lab said that 30 grams of cocaine that Todd Coleman had sold were laced with illegal fentanyl analogues, but they were mistaken.

Todd Coleman was sentenced to a mandatory minimum of 10 years in federal prison for selling 30 grams of cocaine — the equivalent of about 2 tablespoons — that a local crime lab said were laced with three illegal fentanyl analogues, including benzylfentanyl. They were wrong: none of the compounds was an illegal fentanyl analogue — two of them were not even controlled substances — but neither prosecutors nor Coleman’s defense attorney caught the crime lab’s error. Coleman, who said he had no idea the drugs were laced, pleaded guilty. After two years behind bars, this mistake was discovered entirely by happenstance, and Coleman was re-sentenced to three and a half years for the cocaine alone. “Undoubtedly, Todd Coleman is not the only person out there who has been convicted and sentenced for a drug with no potential for abuse,” says Patricia Richman, a federal defender who represents people facing these types of drug charges.

Ten years in prison for 2 tablespoons?

Mandatory minimum sentences are harsh for fentanyl analogues — even harsher than for fentanyl itself. A five-year mandatory minimum is triggered by 40 grams of drugs laced with fentanyl, but if laced with a scheduled fentanyl analogue, only 10 grams of drugs will trigger that same sentence.

To be sure, these drugs are uniquely deadly. As little as 2 milligrams of fentanyl — less than the weight of a pinch of salt — can cause a fatal overdose. And some analogues — the elephant tranquilizer carfentanil is one — are even more deadly than the original. But critics say punishing analogues more harshly incorrectly assumes they are all as dangerous as carfentanil, when in reality, the potency varies widely from one analogue to the next.

“There are derivatives of fentanyl that are more potent than fentanyl. There are also derivatives of fentanyl that are less potent than fentanyl,” says Cunningham, the Concordia University Wisconsin chemist. Even if an analogue is similar in structure to fentanyl, on the basis of the molecule alone, “I don’t know what its potency is, I don’t know what its addiction liability is, and neither would a prosecutor,” he says.

Yet the median sentence for those convicted of crimes involving fentanyl analogues in 2019 was a little more than eight years — two years longer than crimes involving fentanyl itself, according to the United States Sentencing Commission.

Two very similar drugs being treated very differently...that sounds familiar.

The last time a new drug emerged that seemed deadlier and scarier than its chemical cousin — crack cocaine in the 1980s — Congress and a range of federal agencies moved swiftly to bring the weight of the criminal justice system to bear on the problem. With the infamous 100:1 sentencing disparity, Congress created an unequal system of punishments that required 100 times more powder cocaine to lead to the same prison sentence as crack cocaine, even though the two drugs were equally dangerous. Crack was more widely used in urban areas, whereas the more expensive powder cocaine was more widespread in suburbs and country clubs. This fueled massive racial inequality in the nation’s prisons and jails that we’re still trying to address, in slow and piecemeal ways.

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Now, in 2021, even the most conservative lawmakers promise a more enlightened, public health approach to addiction. President Biden (whose own son has famously struggled with addiction) championed this cause on the stump, promising billions of dollars to states that eliminate mandatory minimums. Yet federal approaches to fentanyl and fentanyl analogues are a “total redux of crack versus powder cocaine,” said Richman, the federal defender, who testified against the recent bill.

Like crack and cocaine, punishing analogues more harshly than fentanyl itself with crushing mandatory minimums is “policymaking based on fear and headlines,” Richman says. And just like in the crack era, prosecutions for fentanyl analogues disproportionately target Black people: They comprised 40% of those convicted of fentanyl-related crimes and almost 60% of those convicted of fentanyl analogue–related crimes, according to the Sentencing Commission. And the number of those convictions continues to climb: People prosecuted and convicted of fentanyl analogue crimes increased by 5,725% from 2016 to 2019, according to the Sentencing Commission.

But don’t we need to make analogues illegal?

Those who support class-wide scheduling say that it creates a crucial deterrent for black market labs which would otherwise develop endless new analogues to thwart the normal scheduling process. In a Washington Post op-ed last January, when Congress last considered extending class-wide scheduling, then-Attorney General William Barr wrote that without the extension, “illegal labs in Mexico and China stand ready to flood the United States with what would be a legalized poison.”

Critics of the law say criminalization only increases pressure to create more potent drugs that are easier to smuggle. In fact, some researchers attribute the ascendance of fentanyl itself to the way that heroin and other opiates are policed and prosecuted: Because people are charged by the weight of the drugs they sell, market pressure leads to more potent drugs that weigh less.

Ryan Marino, a Cleveland emergency physician and medical toxicologist who opposed the bill, said that it’s the criminalization of fentanyl that makes it unsafe. “Many fentanyl analogues are used safely in medical procedures all the time,” he said in a recent webinar. “The difference is that doctors know how much they’re giving.”

Does it work?

That depends on your definition of success. Even with a tremendous rise in prosecutions of fentanyl analogues, the number of overdose deaths from fentanyl and other synthetic opioids has continued its grim climb. The line on the graph of synthetic opioid overdose deaths looks like an arrow pointing straight up, from some 20,000 in 2015 to almost 40,000 in 2019.

But advocates of class-wide scheduling say that the law has succeeded in preventing the creation of new analogues. They cite a precipitous drop in the number of newly-created analogues that cops have seized in drug raids and undercover buys: more than 7,000 in the years before class-wide scheduling, versus less than 800 in the years after. “It’s really not about putting people in jail,” said Westlake, the Wisconsin doctor who supports the law. “It’s about stopping the creation of these new variants.”

What is Congress likely to do?

There are vocal legislators in Congress on both sides of the issue. New Jersey Sen. Cory Booker and a handful of other left-leaning senators decried the Biden administration’s support of the new extension, writing in a letter to President Biden that the approach “revives the erroneous policies of the War on Drugs.” At the same time, supporters such as Ohio Rep. Jim Jordan say that without class-wide scheduling, a variety of dangerous analogues “will essentially become street legal.”

At a news conference in April, White House Press Secretary Jen Psaki said “we do want to avoid the expiration of this legislation and recognize the role that fentanyl plays,” but the administration is “having discussions” about “legitimate concerns related to some components of it, including mandatory minimums.”

Drug policy wonks think the temporary extension was able to quietly pass as a compromise measure to allow the Biden administration more time to study the issue. But when it comes up again in October, be on the lookout for a showdown. “This isn’t a niche or technical issue,” said Richman, the federal defender. “This is about overcriminalization. This is about prosecutorial discretion. This is about the war on drugs.”

Beth Schwartzapfel Twitter Email is a staff writer who often covers addiction and health, probation and parole, and LGBTQ+ issues. She is the reporter and host of Violation, a podcast examining an unthinkable crime, second chances, and who pulls the levers of power in the justice system.