Extending Temporary Emergency Scheduling of Fentanyl Analogues Act

Floor Speech

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Mr. DURBIN. Mr. President, we are in the midst of the worst opioid epidemic in a generation, and one tragic aspect of this is the widespread use of fentanyl, a deadly opioid that has killed thousands of people in America.

In 2018, the Drug Enforcement Administration took the unprecedented step of placing all fentanyl-related substances, also known as fentanyl analogs, on schedule I under the Controlled Substances Act. That makes it easier to prosecute any individual who sells or even simply possesses fentanyl analogs, and it subjects those individuals to stiff mandatory minimum penalties regardless of individual circumstances. Typically, a drug is only added to schedule I after the Department of Health and Human Services conducts a scientific study to determine if it has a high potential for abuse and no accepted medical use.

The DEA has had the temporary authority to bypass this process for 2 years. The authority was scheduled to expire on February 6 of last year, 2020. The DEA warned us of the dire consequences if it expired. In response, I worked with Senator Lindsey Graham and Senator Feinstein and authored legislation extending the authority for 15 months, until May 6, 2021.

So what did the Trump administration do for the 12 months that it was in office with this issue still looming? Nothing and neither did Congress.

Now the Biden administration has asked Congress for an additional extension of the DEA's temporary authority in order to evaluate this issue. Just last week, the Senate confirmed Lisa Monaco as Deputy Attorney General. She will oversee the Drug Enforcement Administration. President Biden's nominee to head the DEA, Anne Milgram, is still to be considered by the Senate, so this request now for a temporary extension seems reasonable.

Let me add, though, at the same time as we grapple with the opioid epidemic, we are also in the midst of a national reckoning about racism and massive incarceration in America. We hold more prisoners, by far, than any country in the world. This is largely due to our failed War on Drugs, which has disproportionately targeted people of color. While the majority of illegal drug users and drug dealers in our country is White, the vast majority of people incarcerated for drug offenses is African American or Latino. That is a fact.

More than three decades ago--and I remember this well as I served in the House at the time--Congress responded to the dramatic rise in the use of crack cocaine by dramatically increasing sentences for nonviolent drug offenders; for example, with a sentencing guideline for crack cocaine as compared to powder cocaine of 100 to 1. Well, that was it. We were going to get tough. We were going to send a message. It didn't work. The overall use of illegal drugs actually increased after we increased these penalties between 1990 and 2014, and the availability of drugs like heroin and methamphetamine, instead of going down, increased.

Senator Cory Booker is the chair of the Criminal Justice and Counterterrorism Subcommittee of the Senate Judiciary. He has brought these concerns to the floor of the Senate time and again. I was proud to join him as well as Senator Grassley and Senator Lee. We authored the FIRST STEP Act to begin reforming our criminal justice system from the previous effort with our War on Drugs.

Senator Booker has raised serious concerns about extending the DEA's order when it comes to these fentanyl analogs. For example, he notes the significant racial disparity in fentanyl analog prosecutions. People of color comprise 68 percent of those being sentenced. He also notes that addiction is, in fact, a public health crisis and that we cannot prosecute ourselves out of the opioid epidemic, a lesson we should have learned with the War on Drugs.

So there is an important debate to be had about how to effectively combat the abuse of fentanyl, but we cannot resolve it today on the floor of the Senate. The DEA's authority is scheduled to expire next week, and we will be gone. Last week, the House passed a bill extending the scheduling order until October 22. Senator Booker has agreed not to object to the House bill so that the Senate will have an opportunity to debate the future of this DEA authority and consider other important reforms to our criminal justice system.

2630, which was received from the House and is at the desk.
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