In 2018, the Trump administration issued an emergency order making it easier to prosecute people for selling fentanyl analogues, drugs that share the same chemical structure of the powerful synthetic painkiller that has helped to fuel the opioid epidemic. The order was part of a wider crackdown on new variations of the substance that had been flourishing in illegal drug markets. It gave federal prosecutors new authority to charge people for federal drug crimes, triggering mandatory minimum penalties without a scientific process to determine whether the novel new drugs were even dangerous, Politico reports. On Thursday, Congress reauthorized the fentanyl copycat order for the sixth time with broad bipartisan support, extending it through 2022. Biden favors making the order permanent, which critics argue would embolden federal law enforcement and disproportionately affect low-income defendants of color.
Opponents say it would criminalize thousands of substances, some that haven’t been developed, and set a precedent that could extend to other drug categories. Critics say the order has become a prime example of how the overdose crisis is eroding bipartisan resolve to tackle criminal justice reform. “It is déjà vu, a continuation of the failed war on drugs,” says Kanya Bennett of the Leadership Conference on Civil and Human Rights. “It is in complete contrast to progress we have made around marijuana and sentencing reforms … It is compromising to racial justice work.” Federal authorities usually go through a multistep checklist to classify, or schedule, a drug into a certain category that determines how easily it can be researched and whether it merits criminal penalties. Some fentanyl analogues have already been tested and scheduled. The 2018 order puts fentanyl copycats, which can include thousands of substances, into the strictest drug control category — Schedule I, which also includes heroin, marijuana, LSD and ecstasy — without that scientific review.