The US House of Representatives approved a bill on June 15 intended to fight the growing opioid epidemic, but if the bill becomes a law, it will most likely do more harm than good.
The bill in question is H.R.2851, the Stop the Importation and Trafficking of Synthetic Analogues Act, or the SITSA Act. This bill’s supporters say it will address the wide variety of new and powerful varieties of fentanyl, drugs that the US Centers for Disease Control and Prevention have blamed for much of the recent rise in opioid overdose deaths. Showing up in heroin, bootleg Xanax, and even cocaine, fentanyl and potent variations of it are extremely dangerous for people who don’t know what they’re taking.
And while these drugs, like carfentanil, are indeed a grave public health threat, the SITSA Act won’t actually improve on any of the existing laws that govern these chemicals, and it would, in fact, deepen the harm caused by the criminal justice approach that’s characterized the US’s War on Drugs for decades. The language used by members of Congress to promote this bill — in which the most substantial changes to existing law include establishing a new category of drug legality and designating criminal sentencing guidelines — shows how little they actually know about drugs or drug policy.
“Criminal drug traffickers and importers are able to circumvent current federal law by modifying a single atom or molecule of a currently controlled substance in a laboratory. They create a substance that’s technically lawful but often highly dangerous, addictive, and even deadly,” said Representative Louie Gohmert (R-TX) at a House Judiciary Committee hearing in June 2017, shortly after the SITSA Act was first introduced. He got one bit of the facts right: People can and do create these chemically similar compounds, called analogs, which are slight variations on other chemicals but still have similar properties. But just as importantly, he gets a huge bit of it wrong: These substances are not lawful.
The Federal Analogue Act, passed way back in 1986, already created substantial authority for prosecutors to treat synthetic analogs the same way as they would treat the drugs they resemble. Additionally, in November 2017, the Drug Enforcement Administration established a new order that automatically scheduled any fentanyl analog into the same legal category as fentanyl. Here’s an excerpt from the November announcement:
When the DEA’s order takes effect, anyone who possesses, imports, distributes, or manufactures any illicit fentanyl analogue will be subject to criminal prosecution in the same manner as for fentanyl and other controlled substances. The action announced today will make it easier for federal prosecutors and agents to prosecute traffickers of all forms of fentanyl-related substances.
In other words, the supposed benefit of imposing the SITSA Act has already been addressed by multiple other governmental actions. Not only has the DEA already scheduled existing fentanyl analogs, but it’s also covered its bases for any that may eventually be invented.
Nonetheless, Representative Jim Sensenbrenner (R-WI), one of the bill’s co-sponsors, expressed the same misguided attitude in a press release about the SITSA Act, saying that it “modernizes the Controlled Substance Act by adding a new schedule, Schedule A, to the five existing schedules,” as well as immediately scheduling 13 fentanyl analogs. He fails to point out that the DEA already has the authority to schedule these analogs.
So what would SITSA actually do? Besides letting members of Congress score political points by appearing to get tough on the opioid crisis, it would grant the Department of Justice even broader authority to quickly schedule new drugs — put them into a legal category under the Controlled Substances Act. As Inverse previously reported, this could potentially have the unfortunate side effect of making the plant-based drug kratom illegal.
But perhaps more importantly, it would add to the harmful trend of criminalizing drug use by specifying mandatory sentences for drug offenders, a practice that has been shown not to help stem the flow of drugs. In an open letter to Congress, members of Human Rights Watch, the ACLU, the NAACP, and over a dozen other organizations argue that the SITSA Act is a step backward in drug policy:
If passed, HR 2851 will broadly expand penalties for drug offenses, concentrate power within the Department of Justice, punish people who lack criminal intent, and over-criminalize certain behavior. The legislation attempts to address the very real problem of synthetic opioid overdoses in the United States, but we believe that its methods are misguided. Instead of punishing people who use drugs and low-level dealers, legislation should focus on expanding treatment opportunities and targeting the international drug trade.
The bill is currently under review by the Senate Judiciary Committee after passing the House with 239 votes. Even after his strong words, Representative Gohmert did not vote on the bill.