Critics say new forms of psychedelic and opioid drugs could be outlawed with the stroke of a pen by Attorney General Jeff Sessions if certain legislators in Congress, including California's senior senator, have their way.
Their proposal, launched in both houses, is known as the Stop the Importation and Trafficking of Synthetic Analogues Act, and the idea is to allow the rapid prohibition of new illicit drugs when they appear on the black market. Often synthetic analogues of known drugs like heroin, ecstasy and methamphetamine are designed to skirt federal law that lists banned drugs on the U.S. Drug Enforcement Administration's "schedule" of controlled substances.
The Senate version is co-authored by California's Dianne Feinstein. The law would create a new "schedule" for analogues of known outlaw drugs: Schedule A. A fact sheet on the legislation says it would allow for "more rapid control of these substances." But, in an email, Feinstein denies critics' assertion that the bills would give Sessions sole power to place drugs in Schedule A.
"The bill does not give the attorney general power to unilaterally schedule new drugs — the Justice Department must work in consultation with other parts of the government when determining which drugs to schedule," she said.
While the likes of designer drugs such as ecstasy would be covered by the proposals, the main target is opioids, which are responsible for an estimated 91 deaths each day in the United States. The law seeks to stem the increase in opioid analogues, and it would immediately put 13 synthetic versions of fentanyl on Schedule A. That drug and copycats like it have been mixed in with heroin and cocaine sold on the black market.
"According to the DEA, synthetic opioids caused 5,544 deaths in 2014, and that number has likely grown since then," Feinstein said. "The goal of the bill is to give law enforcement new tools to act quickly when new and dangerous drugs appear on the market. It would target those who manufacture and traffic drugs, not those who are addicted."
More than 60 groups, from the Drug Policy Alliance to the ACLU, signed a letter urging leaders of the House Judiciary Committee, Virginia Republican Bob Goodlatte and Michigan Democrat John Conyers, to block the legislation.
"This bill would greatly expand the penalties for drug offenses, add mandatory minimum sentences to the federal code, and give the attorney general unchecked power to schedule drugs and set criminal penalties," according to the letter. "The proposed legislation is a backwards approach to addressing the country’s drug problem. "
DPA deputy director of national affairs Michael Collins argues the bills would allow Sessions alone to decide what drugs deserve to be on the new schedule. Indeed, the fact sheet from the offices of Feinstein and co-author Chuck Grassley, a Republican from Iowa, argues that the process today is too daunting to keep up with new analogues:
"Drugs may be placed onto one of the current schedules administratively only after the Attorney General and the Secretary of Health & Human Services complete a scientific and medical 'eight-factor' analysis of the substance’s potential for abuse and accepted medical use. The attorney general can also temporarily schedule a substance to avoid an imminent hazard to public safety, but only after an analysis of three of the eight factors."
"The bill circumvents that process," Collins argues. "There's no public health input."
The fact sheet says that Schedule A manufacturing and distribution suspects would be treated as if they had been trafficking in Schedule III substances, essentially the lowest level of street drugs. "It contains no new mandatory minimum sentences. Moreover, it expressly does not criminalize the simple possession of Schedule A substances," according to the document.
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But critics say it would help return the United States to the trenches of the war on drugs by imposing new mandatory minimum sentences for trafficking convictions connected to Schedule A crimes. "The penalties are fairly severe," Collins says.
Natalie Lyla Ginsberg, policy and advocacy director for the Santa Cruz–based Multidisciplinary Association for Psychedelic Studies (MAPS), says that adding new drugs to the list of federal outlaws while putting a wider array of trafficking convicts behind bars will only fuel the black market.
"We see that prohibition does not work as a deterrent," she says. "Bringing in criminalization to a drug issue related to addiction and opiate use is really problematic. When you increase penalties for drug use, it doesn't decrease the availability."
But it does make illicit drugs more valuable.