Traditionally, the government categorizes a drug as Schedule I if it has no medical use. As a result, researchers have had difficulty studying Schedule I controlled substances. In this case, the White House has proposed making fentanyl analogues Schedule I but giving researchers permission to study them as if they were Schedule II substances.

Yes, that’s possible. To address this concern, the administration asked to establish a streamlined process to allow HHS to deschedule analogues that have no opioid effect. Furthermore, the White House has asked for a process  to reduce or vacate the criminal sentences of anyone convicted of trafficking a substance that is later descheduled.

Individuals who sell controlled substances are sentenced differently depending on how much of the substance they are  caught with (see Figure 5).

Current sentencing guidelines limit sentences for less than 40 grams to 20 years maximum and require minimum sentences of five years for quantities between 40 and 400 grams. For example, if you have five grams of a fentanyl analogue, the range of sentencing for trafficking would be between zero and 20 years.

Weight-based sentencing also has some flaws. A person caught with 20 pills made with carfentanil would be charged based on the weight of the pills, not the amount of carfentanil in them. Ten grams of raw carfentanil powder is a lot, and probably indicates drug trafficking. However a pill could weigh 550 milligrams, even if it contained just one microgram of carfentanil in it.

For 550 milligram pills, the higher penalty of five years’ minimum for 40 grams of pills kicks in at 74 pills. The most trafficked pill, M-30, typically weighs 135 mg, so five-year minimums would only apply if an individual possessed more than 297 pills.

74 pills that weigh 550 mg each are enough to sentence a defendant with the first tier of higher penalties for trafficking, but 74 pills does not necessarily suggest a high volume trafficker—and perhaps not a trafficker at all.

Criminal justice reform advocates argue that minorities have been prosecuted more than white defendants and that the flaws in weight-based sentencing have led to race-based sentencing inequities.

Whether or not you agree with criminal justice reform advocates that weight-based sentencing disproportionately affects minorities, it is undeniable that treating an entire pill that contains  <1% carfentanil as if it were made of 100% carfentanil is a flawed method of determining sentences.

The base penalty for selling fentanyl analogues without regard to weight is zero to 20 years. Judges consider a number of factors when setting sentencing including, among other things, whether the defendant was in a supervisory role, and whether they have prior offenses. This is unchanged in the ONDCP proposal.

Regardless of quantity, drug trafficking that leads to death or serious bodily injury carries a mandatory minimum sentence of 20 years and a maximum of life imprisonment. If a defendant has prior drug or violence convictions, the minimum sentence is life imprisonment.

Under the ONDCP proposal, the base sentence for trafficking in fentanyl analogues would continue to be zero to 20 years whether one gram of fentanyl analogue or 100 kilograms of fentanyl analogues are involved. If someone is seriously injured or killed in a case, the mandatory 20 year sentence is still in effect. A prior drug or violence conviction escalates these penalties.

The White House cites a number of steps it has taken to address substance abuse and drug trafficking in this announcement.