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Biden Poised to Break a Promise on Mandatory Minimum Sentencing

Like the racist crackdown on crack cocaine, a crackdown on fentanyl is filling prisons, not preventing deaths.

An officer with U.S. Customs and Border Protection works with a dog to check parcels for fentanyl. Efforts to reduce the illicit supply of fentanyl and similar substances has failed to prevent a surge in overdose deaths.

More than a hundred racial justice and public health groups are urging Congress and President Joe Biden to abandon a Trump administration policy that enhanced criminal penalties for people involved with drugs containing forms of fentanyl, the opioid that has received sensational media coverage for its role in the overdose crisis.

Along with law enforcement efforts, the Trump-era policy failed to prevent a dramatic surge in overdose deaths while expanding the use of mandatory minimum sentencing laws that contribute to mass incarceration. The coalition is asking lawmakers and the White House to embrace a public health and harm reduction approach to fentanyl and other opioids, rather than repeating past mistakes of the war on drugs, such as the crackdown on crack cocaine that filled prisons and fueled racist myths about Black people in the 1980s and 1990s.

“The Biden administration and leaders of Congress are faced with their first major test of criminal justice reform … if they choose to extend this Trump-era policy, it will increase mass incarceration and the over-policing and incarceration of people of color,” said Hilary Shelton, a policy director at the NAACP, during a call with reporters on Monday.

Biden has come under heavy fire from racial justice activists for his role in establishing mandatory minimum sentencing laws, which require federal judges to hand down lengthy prison sentences to defendants accused of certain crimes. Biden has pledged to end mandatory minimum sentencing and address systemic racism in the criminal legal system, but his administration is reportedly poised to extend a Trump-era ban on a broad class of chemicals related to fentanyl that allows prosecutors to pursue mandatory minimum sentences in an alarming number of cases that often involve low-level drug sellers struggling with addiction.

In 2018, the Drug Enforcement Agency (DEA) temporarily placed an entire class of compounds with a similar chemical structure to fentanyl on the Schedule 1 list of drugs that are strictly prohibited by federal law, such as marijuana and heroin. Fentanyl analogues vary in potency, but even a trace of any of these compounds in a batch of drugs can trigger a lengthy mandatory minimum prison sentence.

On Monday, the Government Accountability Office raised concerns that the fentanyl ban could result in people receiving lengthy sentences for compounds that are not even harmful or contain trace amounts of fentanyl-related substances. The ban has also made it harder for researchers to study thousands of fentanyl-like compounds, including to make treatments and antidotes for people living with opioid addiction, according to public health groups.

However, in a statement to the right-leaning outlet Real Clear Politics, a spokesman for Biden’s Office of National Drug Control Policy said the administration will work with Congress to extend the ban for seven months. Biden likely wants to avoid attacks from conservatives claiming he is “legalizing” a drug that has been so heavily demonized in the media, although allowing the Schedule 1 ban to expire is a far cry from legalization.

This “class-wide” scheduling of compounds related to fentanyl — a painkiller commonly used in medical settings that became the subject of media hysteria — came in response to the overdose crisis, which grew over the past two decades despite law enforcement crackdowns on prescription opioids and heroin that caused fentanyl to proliferate. At the same time, the government has so far failed to remove barriers to effective addiction treatment and to take meaningful steps to make drug use safer.

An extension of the class-wide ban approved by Congress will expire next month, but the Biden administration is under pressure to make it permanent, according to advocates. That would lock-in mandatory minimum sentencing for years to come, “doubling down a fear-based, enforcement first response to a public health crisis,” according to a letter submitted to top members of Congress by the coalition of racial justice and health groups on the front lines of the overdose crisis.

“Why, at a time when the murder of George Floyd is on our minds and in our hearts, with the very situation of over-policing that led to his death, why would the Biden administration consider supporting an extension of a Trump policy that exasperated over-policing of communities of color, mass incarceration and drug war?” said Nkechi Taifa, founder of the Justice Roundtable, a group that pushes for criminal legal reform.

Proponents of the class-wide ban argue that allowing it to expire would essentially legalize fentanyl, allowing traffickers to flood the country with dangerous drugs. Opponents say this is false. Illicit fentanyl and analogues would remain illegal, and prosecutors could still secure convictions under the Federal Analogues Act as long as they can prove that an analogue drug is harmful.

Between 2015 and 2019, the number of federal prosecutions for fentanyl offenses increased by nearly 4,000 percent, and the number of prosecutions for fentanyl analogues jumped by more than 5,000 percent, according to an analysis of federal data by civil rights groups. The vast majority — up to 75 percent — of people prosecuted for fentanyl offenses are people of color, and more than half of those prosecuted for fentanyl analogues in 2019 played minor, street-level roles in distribution. Many are young Black men. Even a trace amount of a fentanyl analogue mixed into 10 grams of street drugs can trigger a mandatory minimum sentence of five years in prison, and people can be sentenced to a maximum of 20 years in prison for less than 10 grams.

The increase in prosecutions against people involved with fentanyl and its analogs has failed to stop the supply of drugs on the street and stop overdose deaths. Instead, the drug supply has become more unpredictable and dangerous.

Rates of fatal drug overdose increased during the Trump administration and began spiking in 2019 before skyrocketing to record highs during the early months of the COVID-19 pandemic. There are multiple factors behind the rising rates of death, as well as drugs besides synthetic opioids, and federal overdose data is not always accurate. However, the Centers for Disease Control and Prevention reports that synthetic opioids are driving the numbers of deadly drug overdoses to historic highs — even though overdoses can be easily prevented when people have access to harm reduction resources and health care.

The number of overdose deaths appear to be rising fastest in Black communities, reflecting longstanding drug war stigmas and deep inequities in access to health care and addiction treatment. Policymakers have treated opioid use in white communities more like a public health issue, but in Black communities the response remains harsh and punitive, according to Premal Dharia, executive director of the Institute to End Mass Incarceration at Harvard.

“We must stop repeating historical choices that we know do not work and start working toward building health and flourishing communities for all,” Dharia said.

Dharia and other advocates said the crackdown on fentanyl-like compounds mirrors the crackdown on crack cocaine in Black communities. Like the fentanyl crackdown, crackdown on crack was also fueled by sensational media reports and led to massive disparities in sentencing between Black people involved with crack and white people involved with powder cocaine.

“Once again, with fentanyl, people of color are being disproportionately policed and incarcerated just as they were with crack, and with a punitive approach based in fear and misinformation,” Taifa said.

The Biden administration has hinted that it may be open to diverging somewhat from the drug war and embracing harm reduction, a broad set of practices that includes various methods of overdose prevention and syringe exchange that can make drugs like fentanyl safer to use. The Biden administration will still attempt to reduce the drug supply with policing — the DEA is not going anywhere yet — but the administration has pledged to “eradicate” racial inequities in the criminal legal system and increase access to addiction treatment.

The class-wide fentanyl ban, which expires May 6, will be one indicator of whether Biden will move in any meaningful way toward scaling back the drug war.

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