‘This Is Crack 2.0’

“In 2018, the Trump administration issued an emergency order that would make it easier to prosecute people for selling so-called fentanyl analogues, drugs that share the same chemical structure of the powerful synthetic painkiller that has helped to fuel the nation’s opioid epidemic. Even as the Trump administration began embracing criminal justice reforms and opioid treatment elsewhere, the temporary order was part of a wider law-and-order crack down on new variations of the substance that had been flourishing in illegal drug markets.

The move was small, but significant. With little fanfare and debate, it gave federal prosecutors across the country sweeping new authority to charge people for federal drug crimes, triggering onerous mandatory minimums without the usual scientific process to determine whether the novel new drugs people peddled were even dangerous.

Yet, it wasn’t just a Trump phenomenon: On Thursday, Congress reauthorized the fentanyl copycat order for the sixth time — and the fifth time since Joe Biden’s inauguration — with broad bipartisan support, extending it to the end of this year. Instead of opposing the stricter enforcement, Biden favors making the order permanent — a move civil rights groups, public health researchers, criminal justice reform experts and other critics argue would further embolden federal law enforcement authorities and disproportionately affect low-income defendants of color. Opponents say it would usher in a remarkable change in drug law, one that criminalizes thousands of substances, some that haven’t even yet been developed, and set a precedent that could eventually extend to other drug categories.”

“Federal authorities usually go through a multistep checklist to classify, or schedule, an individual drug into a certain category, which then determines how easily it can be researched and whether it merits criminal penalties. Some fentanyl analogues have already been individually tested and scheduled. But the 2018 order puts fentanyl copycats, which can include thousands of substances, into the government’s strictest drug control category — Schedule I, which also includes heroin, marijuana, LSD and ecstasy — without that scientific review. This represents the first time an entire category of drugs has been scheduled based on chemical structure alone.

In some cases, those fentanyl analogues can be more powerful than fentanyl, which is in the slightly less restrictive Schedule II category. But in other cases, analogues can be harmless or even potentially therapeutic. The FDA has testified that at least one new, potential overdose-reversal agent has fallen victim to the class-wide scheduling order.

Prosecutions for fentanyl-related substances soared during the Trump administration as the substance became more ubiquitous. The number of people prosecuted for and convicted of fentanyl-analogue crimes was nearly non-existent in 2016, but grew to 233 in 2019, according to data from the U.S. Sentencing Commission. Nearly 70 percent of those prosecutions targeted Black and Hispanic people, many of them street dealers rather than major drug kingpins, according to the government data.”

“some defense lawyers worry the impact might be bigger than the data show. Based on her conversations with defense lawyers and independent research, Patricia Richman — national sentencing resource counsel at the Federal Public and Community Defenders, which represents indigent clients in federal cases — argues that many more people are likely being charged under the emergency order. Federal authorities have yet to release updated data on how the law has been used since 2020.”

“Meanwhile, the opioid crisis has worsened: Drug overdose deaths have reached record levels, topping more than 100,000 in the 12 months ending in September 2021 with death rates among Black people catching up to rates among white people. By June of last year, synthetic opioids, which include fentanyl and related substances, accounted for 65 percent of all drug overdose deaths, representing a massive increase from just a few years earlier.”


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