Government was slow to react, in part because fentanyl is devilishly protean. On the black market, it is not one drug but rather many “analogues,” each of which is chemically similar — but legally distinct. This hampered federal efforts to crack down on the supply pouring in from countless small labs in China, via Mexico or even international mail. Savvy drug producers could simply tweak a molecule or two, creating a “new” substance not presumed to be on the prohibited “schedule.” As a result, federal authorities were in the position, under existing statutes, of having to prosecute alleged analogue traffickers under a more difficult evidentiary standard than would otherwise have been required.
In February 2018, the Drug Enforcement Administration addressed this issue by invoking special emergency authorities to impose a “class-wide” ban on any and all fentanyl analogues. But this ban expires Feb. 6; it could be extended for at most one year, after consultations with the Department of Health and Human Services. For months, the Justice Department, with the support of 52 state and territory attorneys general (including those of Maryland, Virginia and the District), has been asking Congress to enact a law empowering the DEA on its own to keep the ban on fentanyl and fentanyl-related substances indefinitely. An effort to include the measure in the must-pass year-end spending bill failed, however, so there are only a few weeks left to avoid a reversion to the previous legal status quo.
Congress should enact the bill before that. Opponents ranging from the American Civil Liberties Union on the left to FreedomWorks on the right raise the generally valid point that drug use and addiction are primarily public-health matters that should be dealt with through treatment rather than criminal sanctions. Granting the DEA the ban it seeks, they argue, would give federal law enforcement the power to impose harsh mandatory minimum sentences for possession of an alleged analogue that may not have the same effects on the human body as fentanyl.
This strikes us as a real but manageable risk, which could be mitigated by incorporating a requirement that the proposed ban be reevaluated every five years or so to make sure it is working as intended. For now, fentanyl is not only a demand-side problem of illicit and harmful use but also a supply-side problem of large-scale but elusive trafficking networks based abroad. There is little evidence that the Justice Department plans to target individual users rather than traffickers, and strong reason to believe that Congress should give it adequate legal and logistical tools to curb the flow of this deadly drug.