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We Urge Congress to Oppose Combating Illicit Xylazine Act and the Nitazene Control Act
March 2, 2026—Due Process Institute joined a broad coalition of national organizations urging Congress to oppose the Combating Illicit Xylazine Act and the Nitazene Control Act. The legislation would expand criminal penalties for emerging substances like xylazine and nitazenes, despite evidence that such approaches do little to reduce overdose deaths or address substance use. Instead, the coalition emphasized that criminalization risks worsening public health outcomes by deterring individuals from seeking treatment and exacerbating the dangers of an already unpredictable drug supply.
The letter highlights that recent declines in overdose deaths have been driven by health-based interventions—not increased criminal enforcement—and warns that punitive approaches have historically contributed to more dangerous drug markets and higher mortality rates. By contrast, expanding access to treatment, harm reduction services, and research-driven solutions has proven more effective at saving lives. Congress now has an opportunity to build on this progress by prioritizing evidence-based policies that support recovery, reduce harm, and strengthen public health.
We Urge Congress to Reject the HALT Fentanyl Act
February 3, 2025–Due Process Institute and 190 national, state, and local public health, criminal justice, and civil rights organizations joined in a letter to House and Senate leadership urging them to reject and vote NO on the Halt All Lethal Trafficking of Fentanyl (HALT) Act (H.R. 27 / S. 331). This bill permanently schedules fentanyl-related substances (FRS) on schedule I of the Controlled Substances Act (CSA) based on a flawed class definition, imposes mandatory minimums, and fails to provide an offramp for removing inert or harmless substances from the drug schedule.
The classwide scheduling approach endorsed in the HALT Fentanyl Act classifies all FRS as schedule I drugs, reserved for substances with no currently accepted medical use and a high potential for abuse. This class definition, however, is a radical departure from drug scheduling practices as it relies exclusively on chemical structure without accounting for pharmacological effect based on the unproven hypothesis of chemical structure-function relationships. Contrary to this hypothesis, structurally related substances can often have complementary therapeutic values. In fact, the National Institute on Drug Abuse (NIDA) has already acknowledged that some FRS are inert and that at least one may be an opioid antagonist that behaves like naloxone, which is itself an opium derivative that counteracts the effects of opioid drugs. Classifying all FRS in schedule I places undue restrictions on research for therapeutic potential of FRS. This means that researchers and scientists are not able to study these substances at a time when the U.S. is experiencing unprecedented overdose deaths.
The HALT Fentanyl Act also enshrines mandatory minimums for distribution of FRS under the Controlled Substances Act, an inappropriate mandate that criminalizes possibly inert or harmless substances. While some proponents of the HALT Fentanyl Act claim that the bill is not intended to interact with the criminal justice system and that mandatory minimums are primarily a deterrent against foreign import of FRS, this is simply inaccurate. The HALT Fentanyl Act expands mandatory minimums for both foreign importation crimes and domestic drug distribution offenses, including nonviolent drug distribution involving small quantities of drugs. What’s more, by automatically scheduling a huge swathe of substances in one fell swoop, the HALT Fentanyl Act would lead to very real criminal justice consequences, posing an unacceptable risk of unnecessary incarceration for substances that carry no potential for abuse. Such miscarriages of justice have already occurred. For instance, Todd Coleman was sentenced to a mandatory minimum of 10 years for sale of cocaine that a crime laboratory said was laced with three fentanyl analogues, only to discover, years later, that the detected adulterants were not illegal fentanyl analogues and most were not even controlled substances.3 Our country is repeating past missteps when it comes to policy responses to fentanyl and its analogues. In the 1980s, policymakers enacted severe mandatory minimums for small amounts of crack cocaine in response to media headlines and law enforcement warnings that perpetuated mythology and fear.
DPI Celebrates Recommendation for New Marijuana Scheduling, Calls for Additional Reforms
May 2, 2024–Statement by Shana-Tara O’Toole, Founder and President of Due Process Institute, on the Drug Enforcement Administration’s recommendation to reclassify marijuana as a Schedule 3 drug:
“Yesterday, the Drug Enforcement Administration recommended a reclassification of marijuana from a Schedule 1 to a Schedule 3 drug. Effectively, this would recognize marijuana as a far less dangerous substance and no longer categorize it alongside drugs like heroin. We acknowledge and celebrate the significance of this recommendation as part of the de-escalation of the ‘war on drugs.’ However, this reform still falls short in addressing some of the most harmful consequences of the United States’ misguided drug policy, has limited impact on federal marijuana arrests, and does not provide relief for people currently serving unnecessarily long sentences for marijuana possession.
We recommend the Biden administration continue this momentum for drug reform by supporting legislation that improves second chance opportunities for people with nonviolent marijuana offenses like the Clean Slate Act, pushing for the full descheduling of marijuana and its removal from the Controlled Substances Act, and continuing the use of the President’s pardon power to rectify unjust marijuana sentences.”
We Call On Congress To Support The TEST Act
September 26, 2023–Due Process Institute and numerous health policy, drug policy, criminal justice reform, civil rights, and advocacy organizations urge members of Congress to cosponsor and support swift passage of the Temporary Emergency Scheduling and Testing of Fentanyl Analogues Act of 2023 (TEST Act). This bill would allow the Drug Enforcement Administration (DEA) to place new fentanyl-related substances (FRS) in Schedule I for up to four years, during which time the Department of Justice (DOJ) and Health and Human Services (HHS) would have to conduct a scientific and medical evaluation of each substance and publicly report the findings.
Congress has preemptively placed all FRS on Schedule I of the Controlled Substances Act (CSA) as a class – even those that do not exist. Congress has considered circumventing the scientific research requirements under current law by passing bills such as the HALT Fentanyl Act (H.R. 467), which would automatically designate any FRS as dangerous without studying a substance at all. Temporary scheduling authority is intended to allow the DOJ the time to conduct the scientific and medical evaluations it is required to by law. By allowing DOJ to designate the entire class of FRS as Schedule I without conducting scientific and medical research, Congress may inadvertently leave undiscovered therapeutic medications similar to naloxone and other life-saving medications at a time when the U.S. is facing record numbers of overdose deaths.
Approximately 285 people die of a preventable overdose each day in the United States. Rather than restricting research, the federal government must support the study and development of new tools and the provision of health services to save lives. This includes studying FRS for potential treatment options and ensuring people can receive the best treatments imaginable. Ensuring that federal agencies and the research community can study emerging substances for potential therapeutic value, including FRS, is a critically important component of these efforts. It can also help ensure that people are not unjustly incarcerated for crimes that were never committed.
We Commend Formation of the Congressional Tobacco Harm Reduction Caucus
September 6, 2023–Due Process Institute and an ideologically diverse group of public policy organizations commend the bipartisan efforts in Congress to elevate the importance of tobacco harm reduction through the formation of the Congressional Tobacco Harm Reduction Caucus. It is an essential approach to addressing disease and death brought by smoking combustible cigarettes.
Despite significant declines, combustible cigarette smoking is still the leading cause of preventable death in the United States. More than 30 million Americans smoke combustible cigarettes and more than 16 million are living with disease caused by smoking. Smoking contributes to 1 in 5 deaths in America: 480,000 premature deaths every year, including more than 41,000 from secondhand smoke. In addition to the loss of life, smoking costs our economy more than $600 billion per year. Every year, more than half of adults who smoke try to quit, but fewer than 8 percent actually do so. And just as the harms of combustible cigarette smoking disproportionately fall on people of color, veterans and service members, LGBTQ people, and poor, rural and disabled Americans, quitting is especially difficult in these populations. These individuals and their families are worth the exploration of every tool that could reduce the harms of tobacco.
Public health, compassion, personal autonomy and pragmatism demand the continuation of investment in prevention and cessation, and get serious about exploring harm reduction. This calls for a paradigm shift from well-intentioned but harmful prohibitionist policies that could increase negative interactions with police, especially in communities of color. The adoption of harm reduction practices can increase quit rates and decrease health risks for many adults who are unable or unwilling to quit using available cessation products and strategies.
We Urge Members Of Congress To Oppose The Combating Xylazine Act
July 18, 2023–Due Process Institute and a coalition of public health, drug policy, criminal justice, and civil and human rights organizations urged members of Congress to oppose the Combating Illicit Xylazine Act (H.R. 1839 / S. 993). This legislation criminalizes human use and distribution of xylazine by imposing Schedule III criminal penalties on an unscheduled substance, thus circumventing the necessary scientific and medical evaluations inherent in the drug scheduling process, and undermining the established decision-making process for scheduling drugs and applying criminal penalties. Moreover, this legislation will result in the disproportionate prosecution and sentencing of people with substance use disorder, including people who may not know xylazine is in their drug supply. Rather than punitive responses to drug use, our government should invest in harm reduction services and evidence-based public health interventions for people who use drugs, particularly given the dangerous state of the illicit drug supply.
Because xylazine is a commonly-used veterinary anesthetic, the Combating Illicit Xylazine Act does not advocate for scheduling xylazine under the Controlled Substances Act (CSA). Rather, it applies Schedule III criminal penalties without labeling xylazine as a controlled substance. This approach is concerning as it criminalizes xylazine without subjecting it to the standard 8-factor scientific and medical evaluation required by the Secretary of Health and Human Services (HHS) for CSA placement. By circumventing the comprehensive HHS analysis necessary for drug scheduling, this legislation obstructs the development of evidence-based regulations. It establishes a troubling precedent by disregarding expert analysis on abuse potential and medical use in favor of reactionary politics. Consequently, the anti-science nature of the Combating Illicit Xylazine Act undermines the credibility of U.S. drug policy and paves the way for future bills to do the same.
To prevent overdoses and mitigate the harms of the illicit drug supply, Congress must prioritize science-based decision-making and harm reduction strategies, as well as comprehensive public health approaches to the overdose epidemic. Given these objections, we strongly urge Congress to oppose the Combating Illicit Xylazine Act as this legislation is a reactionary extension of the War on Drugs, and will only exacerbate the harms of the illicit drug supply.
We Urge The Biden Administration to Issue Clear Statement Against the HALT Fentanyl Act
May 23, 2023–Due Process Institute led a letter with Drug Policy Alliance, FAMM, Law Enforcement Action Partnership, The Leadership Conference on Civil and Human Rights, The Sentencing Project, and Vera Institute of Justice, to express disappointment at the White House’s May 22, 2023 Statement of Administration Policy (“SAP”) on H.R. 467, the Halt All Lethal Trafficking of (HALT) Fentanyl Act. Perhaps inadvertently, the Administration’s statement failed to condemn the HALT Fentanyl Act’s expansion of mandatory minimums and encouraged Congress to throw its support behind legislation that will only exacerbate the harms of illicit drug activity and will do nothing to further the public health solutions urgently needed. We urge the Biden administration to issue a clear statement against the HALT Fentanyl Act and we ask Congress to vote no on this legislation.
The HALT Fentanyl Act fails to implement critical aspects of the Biden administration’s 2021 permanent fentanyl-related substances (FRS) scheduling proposal: 1) HALT fails to provide for “a streamlined process for the Department of Health and Human Services to identify and remove or reschedule any individual FRS” that does not pose a “high potential for abuse;” and 2) it contains no provision for studying the impact of permanent FRS scheduling on “research, civil rights, and the illicit manufacturing and trafficking of FRS.” These fatal flaws in the HALT Fentanyl Act — the absence of what the SAP calls “critical components” of any permanent FRS scheduling initiative — make it absolutely imperative that Congress votes no on the bill. A vote for the HALT Fentanyl Act is a vote against not just smart public health and public safety, but against your Administration’s stated position on permanent scheduling as well.
Disappointingly, the SAP does not mention yet another unacceptable aspect of the HALT Fentanyl Act: its entrenchment and expansion of mandatory minimums. As drafted, the HALT Fentanyl Act expressly entrenches quantity-based mandatory minimums for trafficking FRS. Under the HALT Fentanyl Act, a person who distributes just 10 grams of an FRS will be subject to a 5-year mandatory minimum prison term, which increases to a 10-year mandatory minimum prison term for trafficking 100 grams of FRS. What’s more, the HALT Fentanyl Act also expands mandatory minimums to non-FRS fentanyl-analogue trafficking. Section 6 of the HALT Fentanyl Act, as amended, would express Congress’s view that non-FRS analogues of fentanyl should be subject to the same harsh quantity-based mandatory minimums that the HALT Fentanyl Act applies to FRS trafficking under the classwide scheduling approach.
We Urge Congress To Not Pass The HALT Fentanyl Act
May 22, 2023–Due Process Institute and 157 undersigned national, state, and local public health, criminal justice reform, and civil rights organizations wrote to urge Congress to reject and vote NO on the Halt All Lethal Trafficking of Fentanyl (HALT) Act. This bill, H.R. 467, permanently schedules fentanyl related substances (FRS) on schedule I of the Controlled Substances Act (CSA) based on a flawed class definition, imposes mandatory minimums, and fails to provide an offramp for removing inert or harmless substances from the drug schedule.
The classwide scheduling approach endorsed in the HALT Fentanyl Act classifies all FRS as schedule I drugs, reserved for substances with no currently accepted medical use and a high potential for abuse.1 This class definition, however, is a radical departure from drug scheduling practices as it relies exclusively on chemical structure without accounting for pharmacological effect based on the unproven hypothesis of chemical structure-function relationships.
The HALT Fentanyl Act also enshrines mandatory minimums for distribution of FRS under the Controlled Substances Act, an inappropriate mandate that criminalizes possibly inert or harmless substances. While some proponents of the HALT Fentanyl Act claim that the bill is not intended to interact with the criminal justice system and that mandatory minimums are primarily a deterrent against foreign import of FRS, this is simply inaccurate. The HALT Fentanyl Act expands mandatory minimums for both foreign importation crimes and domestic drug distribution offenses, including nonviolent drug distribution involving small quantities of drugs.
Our country is repeating past missteps when it comes to policy responses to fentanyl and its analogues. In the 1980s, policymakers enacted severe mandatory minimums for small amounts of crack cocaine in response to media headlines and law enforcement warnings that perpetuated mythology and fear. These laws imposed harsher penalties for crack—a substance associated with Black people—than for cocaine—a substance associated with white people—even though the two substances are chemically similar. In the ensuing decades, people of color have been disproportionately incarcerated and sentenced to mandatory minimum sentences for small amounts of crack. The emergence of fentanyl-related substances in recent years has fueled similar waves of alarmist media and law enforcement headlines that are informed by mythology rather than science. Any further extension of the classwide scheduling policy threatens to repeat past missteps with crack cocaine that policymakers are still working to rectify.
The HALT Fentanyl Act and other bills proposing the permanent classwide scheduling of FRS are yet another iteration of the drug war’s ineffective and punitive strategies. To prevent overdose, Congress must invest in a public health solutions to mitigate the harms of illicit fentanyl. We urge Congress to support bills like the Support, Treatment, and Overdose Prevention of Fentanyl (STOP Fentanyl) Act of 2021 (H.R. 2366) introduced by Rep. Ann Kuster (D-NH) and Rep. Lisa Blunt Rochester (D-DE), which proposes increased access to harm reduction services and substance use disorder treatment, improved data collection, and other evidence-based methods to reduce overdose, and the TEST Act, which provides funding for FRS research and offers alternative strategies to simultaneously address the opioid epidemic while preventing backsliding on criminal justice reform.
We Oppose the Halt All Lethal Trafficking of Fentanyl Act
March 6, 2023–Due Process Institute, national, state, and local public health and other criminal justice reform organizations urged Congress to reject and vote NO on the Halt All Lethal Trafficking of Fentanyl (HALT) Act (H.R. 467). This bill permanently schedules fentanyl related substances (FRS) on schedule I of the Controlled Substances Act (CSA) based on a flawed class definition, imposes mandatory minimums, and fails to provide an offramp for removing inert or harmless substances from the drug schedule.
The classwide scheduling approach endorsed in the HALT Fentanyl Act classifies all FRS as schedule I drugs, reserved for substances with no currently accepted medical use and a high potential for abuse. This class definition, however, is a radical departure from drug scheduling practices as it relies exclusively on chemical structure without accounting for pharmacological effect based on the unproven hypothesis of chemical structure-function relationships. Furthermore, The HALT Fentanyl Act also enshrines mandatory minimums for distribution of FRS under the Controlled Substances Act, an inappropriate mandate that criminalizes possibly inert or harmless substances. Our country is repeating past missteps when it comes to policy responses to fentanyl and its analogues. In the 1980s, policymakers enacted severe mandatory minimums for small amounts of crack cocaine in response to media headlines and law enforcement warnings that perpetuated mythology and fear.
We urge Congress to support bills like the Support, Treatment, and Overdose Prevention of Fentanyl (STOP Fentanyl) Act of 2021 (H.R. 2366) introduced by Rep. Ann Kuster (D-NH) and Rep. Lisa Blunt Rochester (D-DE), which proposes increased access to harm reduction services and substance use disorder treatment, improved data collection, and other evidence-based methods to reduce overdose, and the TEST Act, which provides funding for FRS research and offers alternative strategies to simultaneously address the opioid epidemic while preventing backsliding on criminal justice reform.
We Call for Immediate Legislation to Reduce Record Number of Overdose Deaths
November 30, 2021–Due Process Institute joined over 240 organizations to urge Congress to swiftly enact legislation to address the historic and ongoing drug overdose epidemic by supporting urgently needed public health services, including increased access to harm reduction services and treatment. This year the U.S. reached the grim marker of over 100,000 overdose deaths; this represents the highest number of overdose deaths ever on record.
For the past 50 years, the U.S. has carried out an enforcement-first, criminalization approach to drug policy. Criminalization has not reduced the illicit drug supply nor has it saved lives, as evidenced by the increasing number of overdose deaths. Instead, criminalization has perpetuated stigma against people who use drugs, creating an environment where individuals have a more difficult time accessing the health services and support they need. These approaches have also fueled overdose numbers by pushing people into risky situations, making the drug supply unregulated and unsafe, and wasting resources on punishment instead of harm reduction and other health services proven to save lives.
We urge Congress to enact the following legislation: $69.5 million in FY22 funding to increase access to overdose prevention and harm reduction, the Mainstreaming Addiction Treatment (MAT) Act (H.R. 1384 / S. 445), and the Support, Treatment, and Overdose Prevention (STOP) of Fentanyl Act (H.R. 2366 / S.1457).
The nation cannot wait another year to address the skyrocketing increase in overdose deaths. The time to implement evidence-based policies grounded in compassion is now.
We Urge Against FDA Regulations That Will Lead to Overcriminalization
April 26, 2021–Due Process Institute joined a diverse and bipartisan coalition of over two dozen groups to express deep concern over reports that the U.S. Food and Drug Administration (FDA) may be contemplating regulations to prohibit menthol cigarettes. While the regulations are well-intentioned, policies that amount to prohibition for adults will have serious racial justice implications. Such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction. A ban will also lead to unconstitutional policing and other negative interactions with local law enforcement.
There is a better approach that avoids this overcriminalization. We strongly support the FDA and other policymakers continuing with harm reduction policies emphasizing education for adults and minors, cessation, well-funded health care for communities of color, and other measures that push tobacco use down without putting criminal justice reform at risk.
We Urge President Biden and the DOJ to End Classwide Scheduling of Fentanyl-Related Substances
August 24, 2021–Due Process Institute signed a letter with 142 organizations calling for the Biden administration and the Department of Justice to let the temporary “classwide” emergency scheduling of fentanyl-related substances expire on October 22, 2021. Under the classwide control, any offense involving a “fentanyl-related substance” is subject to federal criminal prosecution, even if the substance in question is helpful or has no potential for abuse. The continuation of this policy would further exacerbate pretrial detention, mass incarceration, and racial disparities in the prison system, doubling down on a fear-based, enforcement-first response to a public health challenge. Classwide control could also lead to over-criminalization and prosecutorial misconduct. The federal government must not repeat the decades-old mistakes it made around crack-powder sentencing disparities, but rather it should follow the science and a public health strategy to address the overdose crisis and drug abuse.
DPI Joins More than 100 Other Orgs to Support MORE Act
August 1, 2019–Due Process Institute supports the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3884) because it would deschedule marijuana, removing it from the Controlled Substances Act, and would provide a process for courts to expunge marijuana convictions and re-sentence people with marijuana convictions.
Due Process Institute Joins Bipartisan Opposition to SITSA
September 20, 2018–Both the House and Senate are considering the inclusion of “Stop the Importation and Trafficking of Scheduled Analogues” (SITSA) (H.R. 2851/S. 1327) as part of their bill packages to take action relating to the nation’s opioid epidemic. Due Process Institute joined bipartisan opposition to this legislation because the bill will broadly expand penalties for drug offenses, concentrate power within the Department of Justice (DOJ), punish people who lack criminal intent, and overcriminalize certain behavior.
UPDATE: Thanks in part to our advocacy, the House’s final opioid bill package did not include SITSA.