Contact: Matt Levy [email protected]

Opting for harsh sentencing and stigma over health services and reform, lawmakers continue to push Trump-era policies rooted in fear not science

Washington, D.C. — Today, a group of leading civil rights advocates, grassroots community leaders, and policy experts strongly criticized the inclusion of a provision in the stopgap spending bill passed by Congress that would extend the temporary classification of fentanyl-related substances (FRS) as Schedule I drugs, opting for indiscriminate criminalization over proven public health solutions. 

This temporary order classifying FRS — synthetic substances chemically similar to fentanyl — as Schedule I drugs will now last until March 11. President Biden, despite promising real criminal-legal reform, is advocating to make this Trump-era criminalization policy permanent. Congress keeps extending this temporary classification rather than investing in public health and harm reduction solutions. 

Here are the facts on FRS scheduling:

  • Classwide scheduling fails to stop overdoses. This classwide FRS scheduling has been in effect for more than three years, yet overdoses have continued to rise dramatically
  • Harmful drugs would still be illegal without permanent FRS classwide scheduling. The Controlled Substances Act and the Federal Analogues Act already allow the Department of Justice to prosecute people for substances that mimic fentanyl so long as they are proven to be harmful. 
  • Harsh criminal penalties do not decrease the drug supply in U.S. communities. Federal law enforcement mostly target people at the lower end of the drug distribution chain, not organized crime responsible for manufacturing and supplying illicit substances in trafficking conspiracies involving fentanyl analogues. 
  • Indiscriminate classification of FRS as Schedule I drugs turns back the clock towards a racist, outdated War on Drugs at a time when more Americans than ever want real criminal-legal reform. Prosecutions will continue to fall disproportionately on people of color. In 2019, 68 percent of those sentenced for crimes related to fentanyl analogues were people of color. 

More information on this wrong-headed policy is available here.

The group calls on Congress to let the classwide scheduling policy expire and instead pass health-centered public health measures, like the solutions listed here.  

“With this vote, congressional leaders continue to punt any real decision on the wrong-headed, temporary classification of fentanyl-related substances. Instead of investing in proven public health solutions, the federal government will carry on the overcriminalization of substances, despite knowing little to nothing about the actual effect they have on people. This abdication of leadership is disappointing and dangerous, considering the number of people, especially from communities of color, who will be unnecessarily jailed and imprisoned,” said Aamra Ahmad, Senior Policy Counsel for the American Civil Liberties Union’s Justice Division.

“Congress must address this issue head-on and through regular order by passing public health-centered legislation to address deadly overdoses. It is shameful that in the midst of an overdose epidemic, Congress is greenlighting a policy that promotes fear and stigma over health and science. We call on Congress to end this unprecedented and radical approach to drug scheduling and instead focus on saving lives,” said Maritza Perez, Director of the Office of National Affairs, Drug Policy Alliance.

“That the public officials we the people put in office chose to escalate the War on Drugs, rather than address the root causes of substance abuse that impact all facets of our society, demonstrates a callous lack of understanding or care for communities that already suffer from overcriminalization and a lack of resources. We continue to call on the Biden administration and  Congress to invest in meaningful public-health solutions that will help people, rather than relying on unproductive punitive measures,” said Sakira Cook, Senior Director of the justice reform program at The Leadership Conference on Civil and Human Rights.

“Extension of this policy will do nothing to stop the overdose crisis, which has only skyrocketed since this temporary policy was put in place three years ago. We need Congress and the Biden administration to meaningfully invest in health-based solutions proven to work, not in more criminalization that continues to disproportionately impact Black and brown communities,” said Laura Pitter, Deputy Director of the US Program at Human Rights Watch.

“Classwide scheduling of fentanyl analogues hasn’t saved lives, isn’t rooted in science, and will only perpetuate the racial disparities pervasive in the criminal legal system. Too many people are behind bars because of the failed War on Drugs already. Communities deserve solutions, not more overcriminalization. It’s time for Congress to invest in evidence-based public health approaches to ending the overdose crisis,” said Liz Komar, Sentencing Reform Counsel at The Sentencing Project. 

“We are facing an unprecedented opioid crisis in this country, and Congress must address the moment with public health solutions instead of continuing to cause harm through the temporary scheduling of fentanyl-related substances,” said Marta Nelson, Director of Government Strategy, Advocacy and Partnerships at the Vera Institute of Justice. “Over the past three years that this policy has been in effect, drug-related deaths have only increased. In the meantime, the class-wide scheduling creates its own harm, due to its overbroad definitions that punish people for selling substances that may have no pharmacological effect. The policy also disproportionately impacts communities of color while doing little to address the root causes of the problem.”  

“A world is possible where we treat every preventable overdose death like the tragedy it is. Congress has a chance to help build this world by investing in proven public health solutions instead of punitive approaches to drug policy. It’s shameful Congress extended the classwide scheduling of fentanyl because we know care saves lives, not criminalization,” said Ellen Glover, Drug Policy, Harm Reduction and Criminal Justice Campaign Director at People’s Action.

“Criminalization doesn’t do anything to stop overdoses or save lives. We know what works – and it isn’t more of the failed decades-long “tough on crime” approaches. Elected prosecutors are increasingly recognizing the need for public health strategies that move away from stigmatizing those who are struggling with substance use challenges; they don’t need further mandated penalties that perpetuate an outdated War on Drugs mindset,” said Miriam Krinsky, executive director at Fair and Just Prosecution and a former federal prosecutor. “This policy will continue to trap more people, especially people of color, in cycles of incarceration, instead of focusing on proven solutions.”



About the Drug Policy Alliance – The Drug Policy Alliance envisions a just society in which the use and regulation of drugs are grounded in science, compassion, health and human rights, in which people are no longer punished for what they put into their own bodies but only for crimes committed against others, and in which the fears, prejudices and punitive prohibitions of today are no more.

About The Leadership Conference on Civil and Human Rights – The Leadership Conference on Civil and Human Rights is a coalition charged by its diverse membership of more than 230 national organizations to promote and protect the rights of all persons in the United States. The Leadership Conference works toward an America as good as its ideals. For more information on The Leadership Conference and its member organizations, visit

About the Vera Institute of Justice – The Vera Institute of Justice is powered by hundreds of advocates, researchers, and activists working to transform the criminal legal and immigration systems until they’re fair for all. Founded in 1961 to advocate for alternatives to money bail in New York City, Vera is now a national organization that partners with impacted communities and government leaders for change. We develop just, antiracist solutions so that money doesn’t determine freedom; fewer people are in jails, prisons, and immigration detention; and everyone is treated with dignity. Vera’s headquarters is in Brooklyn, New York, with offices in Washington, DC, New Orleans, and Los Angeles.

About Fair and Just Prosecution – Fair and Just Prosecution is a national and bipartisan network of elected prosecutors working towards common-sense, compassionate and fiscally responsible criminal justice reforms. To learn more about FJP’s work, visit

About Human Rights Watch – Human Rights Watch is an international non-governmental organization that monitors human rights violations in more than 90 countries, including the United States. We investigate abuses, expose the facts related to those abuses, and advocate that those with power respect rights and secure justice.

About the American Civil Liberties Union – The American Civil Liberties Union was founded in 1920 and is our nation’s guardian of liberty. The ACLU works in the courts, legislatures, and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States. Read more about the history and mission of the ACLU.

About People’s Action – People’s Action is a national network of 40 state and local grassroots, power-building organizations in 30 states, united in fighting for justice.  Our Overdose Crisis Cohort brings together people who are current drug users, those in recovery and family members who have lost loved ones. We work intentionally to build bridges across geographies, race and experience as it relates to overdose and focus on ending criminalization approaches to drug use and towards public health solutions including harm reduction tools and treatment access. 

About The Sentencing Project The Sentencing Project promotes effective and humane responses to crime that minimize imprisonment and criminalization of youth and adults by promoting racial, ethnic, economic, and gender justice.