WASHINGTON (Sept. 8, 2021)—Last week, on behalf of the Biden-Harris administration, the Office of National Drug Control Policy, Department of Health and Human Services and the Department of Justice recommended Congress make permanent fentanyl-related substances’ (FRS) class-wide Schedule I status. The R Street Institute urges U.S. Congress members to reject this recommendation.

While ultra-potent opioids such as fentanyl and its analogs have played a clear role in the escalation of opioid overdose in the United States, “tough-on-crime” methodologies neither enhance public safety nor remedy public health problems. Indeed, the U.S. Drug Enforcement Administration’s 2018 emergency rescheduling order failed to achieve its intended objectives to reduce either deaths from synthetic opioids or the widespread trafficking of FRS. Rather, such class-wide scheduling perpetuates the already disparate public health, criminal justice and social fallout from the nation’s failed war on drugs.

Overcriminalization leads to mass incarceration—most often of substance-dependent users—and disproportionately affects BIPOC, who face drug-related prosecution and conviction at much higher rates than white people, despite using at similar rates. Furthermore, class-wide scheduling runs counter to the Biden-Harris administration’s efforts to prioritize a public health approach to the overdose crisis. Overcriminalization disrupts treatment and harm reduction, increasing disease and overdose risk; and fear of incarceration reduces both people’s likelihood of seeking medical attention for overdose emergencies or providing assistance due to inconsistent state laws for drug overdose immunity.

Ordering the class-wide scheduling of fentanyl and its analogs will do more harm than good. As such, we urge members to reject this recommendation in favor of policy that supports harm reduction and public health.