White House proposes removing penalties for fentanyl trafficking-related offenses

The White House on Thursday proposed removing certain penalties associated with trafficking of fentanyl-related substances (FRS), prompting criticism that it would weaken illicit drug enforcement.

President Biden and former President Trump temporarily placed FRS under schedule I of the Controlled Substances Act. Thursday's proposal would make that change permanent while removing certain quantity-based mandatory minimums.

In a letter to Senate leaders reviewed by Fox News, the Office of National Drug Control Policy (ONDCP) described the plan as the result of collaboration with the Justice Department (DOJ) and Department of Health and Human Services (HHS).

"We are pleased to present to Congress a long-term, consensus approach that advances efforts to reduce the supply and availability of illicitly manufactured FRS, while protecting civil rights, and reducing barriers to scientific research for all schedule I substances," said ONDCP acting Director Regina LaBelle.

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LaBelle added that "the proposal would exclude those FRS that are scheduled by class from certain quantity-based mandatory minimum penalties normally associated with domestic trafficking, and import and export offenses of CSA schedule I compounds."

"It would further ensure that a federal court can vacate or reduce the sentence of an individual convicted of an offense involving an individual FRS that is subsequently removed or rescheduled from schedule I."

Not all mandatory minimums would be excluded under the proposal. It notes that it wouldn't exempt "FRS offenses from existing mandatory minimums for cases where death or serious bodily injury can be directly linked to the FRS that was trafficked, as is the case for any other Schedule I or II controlled substance under 21 U.S.C. 841(b)(1)(C)."

"The Justice Department reported only eight cases with FRS charges from the time temporary class scheduling was adopted in 2018 through December 2020, of which only a handful even included charges of quantity-driven mandatory minimums." 

Sen. Rob Portman, R-Ohio, applauded the Biden administration in a statement Thursday.

He said: "It is time for Congress to permanently ban fentanyl-related substances, and I’m pleased that the Biden administration has put forward a proposal that is consistent with bipartisan legislation I have introduced … Not only is a permanent solution critical in our battle against addiction in this country, but it is also vital in ensuring law enforcement can continue to protect our communities by bringing criminal actions against individuals who manufacture, distribute, or handle these deadly drugs."

The White House’s letter came amid a spike in fentanyl deaths, which some Republicans have blamed on the administration's border enforcement.

April of this year alone saw a 233% increase in fentanyl seizures at the southern border, according to data released by U.S. Customs and Border Protection. Fentanyl, a dangerous opioid, is significantly stronger than heroin and the related opioid carfentanyl is even stronger than fentanyl.

Sen. Tom Cotton, R-Ark., slammed the Biden administration's proposal for being soft on criminals who are pushing fentanyl and killing Americans. 

"Fentanyl analogues kill thousands of Americans each year. To protect our communities from the dealers pushing this poison, President Biden needs to keep them off the streets, not let them off the hook," said Cotton in a statement to Fox News.

Sen. Chuck Grassley, R-Iowa, was similarly critical: "For months, I’ve been calling on the Biden administration to get serious about combatting fentanyl knockoffs, which led to a record number of overdose deaths in the United States last year," he said. 

"The plan, released mere weeks before a temporary scheduling authority expires, sets us up for a rushed process that doesn’t allow for the methodical review that this issues demands. While the plan provides some greater certainty on how deadly fentanyl-like substances will be controlled, it appears that the Biden Administration cares more about avoiding new penalties than holding drug traffickers accountable for fueling an opioid epidemic that continues to destroy families and erode communities across the country."

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A Senate aide also told Fox News the proposal wasn't serious and would encourage illicit drug labs. "This is not a serious proposal. It's nothing more than a compromise between mainstream Democrats and pro-crime Democrats, and would only encourage illicit Chinese drug labs to get creative again with new fentanyl variants," the aide said.

The White House did not immediately respond to Fox News' request for comment.

Thursday's proposal raises questions about how the Biden administration will continue the previous president's fight against an opioid epidemic that has ravaged communities across the U.S.

In May, Biden extended a rule from Trump's DOJ by signing the Extending Temporary Emergency Scheduling of Fentanyl Analogues Act, which lasts until Oct. 22.

LaBelle added that Congress should approve $41 billion in spending for national drug program agencies, as well as continue working on legislation designed to counter overdoses.

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"Expanding the nation’s public health approach to substance use disorders and strengthening our public safety efforts to reduce the drug supply are essential parts of our strategy to bringing down the rates of overdose death," said LaBelle. 

"Acting to permanently schedule FRS, combined with historic investments in the addiction infrastructure, as well as efforts to tackle illicit finance and disrupt drug trafficking, will stand as the most comprehensive effort to address substance use and its consequences in our nation’s history. In all these efforts, we look forward to working with Congress to support safe and healthy communities. Please do not hesitate to reach out if you have any questions."

Fox News' Houston Keene and Kelly Laco contributed to this report.