Could Pot Be Decriminalized Before Biden Leaves Office?
President Biden’s surprise marijuana reform announcement last week has mostly gotten attention for pardoning thousands convicted of simple possession of marijuana, a move that many observers have called a small step towards criminal justice reform. But it’s the mostly overlooked second part of Biden’s announcement — a directive to reevaluate pot’s federal status as a Schedule I drug — that has the potential to change the future of American cannabis policy.
Schedule I is the federal government’s most tightly controlled drug classification, reserved for extremely dangerous substances with high potential for abuse and no medical use. That doesn’t describe pot, Biden declared last week, and he is now asking his own administration to start the process of making the drug’s legal classification match its reality.
The reevaluation is more than just an empty gesture. Experts like John Hudak, a senior fellow at the Brookings Institution, said there’s a very good chance of Biden’s directive leading to actual reform — not decades from now, but by the end of his current term in office. “This is not just a blue-ribbon commission putting together a report,” Hudak said. “This is a formal legal process that is required in order for the executive branch to consider a change in scheduling.”
In other words, Biden just triggered a process that could end federal pot prohibition as we know it.
Marijuana landed in Schedule I in 1970, when Congress first passed the Controlled Substances Act, a law that dictates federal drug policy and created five “schedules” under which substances could be classified. Pot’s placement was meant to be only a temporary designation, while officials waited for scientists to finish research on the plant and its effects. But in 1972, after then-Attorney General John Mitchell overruled the scientific commission’s recommendation to decriminalize, marijuana became a permanent Schedule I drug. The decision would later become infamous when interviews with aides to former President Richard Nixon and recordings from Nixon’s White House tapes showed that the administration was using that classification as a way to criminalize, in the words of former Nixon aide John Ehrlichman, the “antiwar left and Black people.”
Despite the sordid history of pot’s scheduling, cannabis has been paralyzed in Schedule I status for more than 50 years because of a legal dilemma created by the law itself. Before pot can be downgraded to a lower schedule, there needs to be scientific evidence that cannabis can be used safely and has at least some medical uses. But the Schedule I status itself severely limits any research into the drug: Subsequent reviews have inevitably failed to find enough evidence to reschedule the drug.
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Pot’s Schedule I status remains the most powerful force in American cannabis policy, even as millions of Americans gain access to medical marijuana through state markets. Schedule I is why federal agents can arrest people for smoking a single joint. It’s why scientists can’t easily study the drug. It’s why most banks won’t lend money to marijuana startups and why pot companies pay some of the highest federal tax rates in the country.
Moving a drug to a different schedule is a lengthy bureaucratic process — previous reviews of pot’s CSA classification took between six and 22 years to complete, Hudak said. But he and other experts think that this reclassification could happen much faster. That’s because Biden is approaching this declassification in a unique — and powerful — way.
That starts with how the president announced his plans. Biden publicly told his appointees that he wants this done “expeditiously,” pressuring his officials to act before his term ends in 2024. “The president is messaging to those appointees — and the appointees will totally understand it — that this is something he wants done [quickly],” Hudak said. In contrast, former President Barack Obama refused to take this administrative action, telling reporters that a schedule change had to come from Congress. Biden not only directed his agencies to conduct this review, but announced it by saying that Schedule I “makes no sense” for pot.
The process will begin with the Food and Drug Administration conducting a scientific evaluation of cannabis. This study will look at eight different aspects of the drug, including the substance’s pharmacological effects, public health risks and potential for abuse. The FDA will send this information to the secretary of Health and Human Services, who will then make a recommendation to the Drug Enforcement Administration. The HHS secretary can recommend that pot remain a Schedule I drug, be moved to a lower, less restrictive schedule or be removed entirely.
Both Attorney General Merrick Garland and Health and Human Services Secretary Xavier Becerra are already taking up the charge. Becerra tweeted hours after Biden’s announcement (at 4:20 p.m., in perhaps a nod to stoner culture) that he was “looking forward” to working with Garland to review how marijuana is scheduled under federal law. And the Department of Justice announced the same day that it is “expeditiously” reviewing pardons and working with HHS to review pot’s scheduling decision.
This forceful move by Biden has made legal experts like Daniel Shortt, a cannabis attorney based in Seattle, optimistic about the chances marijauna could be removed from Schedule I.
“This is the most consequential piece of federal cannabis policy since 1937, when federal pot prohibition began,” Shortt said. “However long this process takes, it’s going to end with a significantly different approach to federal prohibition.”
But there are many ways Biden’s scheduling directive could fail. Chief among them is the evaluation of marijuana’s medical effectiveness. This isn’t the first time the federal government has reviewed pot’s Schedule I status. The DOJ and HHS have studied the issue multiple times and each review has concluded the same way: with the FDA declaring that pot is dangerous and has no accepted medical use, and the DOJ refusing to remove cannabis from Schedule I.
As recently as 2016, the FDA ruled that marijuana had not demonstrated medical value — but there have been major medical cannabis developments in the last six years. Nearly half of oncologists reported recommending medical cannabis to their cancer patients, according to a survey conducted in 2016 and 2017. And the National Academies of Sciences, Engineering, and Medicine, the country’s leading academic body for scientific research, concluded in 2017 that there is substantial evidence that cannabis is an effective treatment for chronic pain in adults.
Even the FDA has updated its opinion on the medical use of cannabinoids. In 2018, the agency approved Epidiolex, a pharmaceutical cannabinoid derived from cannabis plants, to treat rare forms of epilepsy. Epidiolex showed benefits in randomized, double-blind, placebo-controlled clinical trials, effectively proving through the gold standard of medical research that pot can have medical value.
The approval of Epidiolex could be the most important development in changing the FDA’s opinion about pot by demonstrating that cannabis has “medical value and accepted medical use,” Hudak said. But Matt Zorn, an attorney who has handled multiple cases against DEA’s scheduling decisions, said it wasn’t clear if Epidiolex would be a slam dunk for rescheduling cannabis. The agency could decide that a pharmaceutical derived from cannabis is categorically different from cannabis itself.
But there is power in the president clearly and decisively asking for change. Politics inevitably creeps into the FDA’s scientific review and scheduling recommendation, Hudak said. And this is the first time the president himself, rather than an outside group, has requested a reevaluation of pot. This will likely push the agencies to make a different decision simply “because their boss told them to,” Shortt said.
And not only is the president on record supporting pot — both of Biden’s appointees have a history of defending cannabis. In his 2021 confirmation hearings, Garland, who will eventually make the ultimate scheduling decision as the head of the DOJ, criticized enforcing federal marijuana law as an ineffective use of federal resources and racially discriminatory in its effect.
Becerra is an even bigger advocate for cannabis reform. As a member of Congress, Becerra repeatedly voted to block the DOJ from interfering with medical marijuana programs and to allow cannabis businesses to access banking. As California’s attorney general, Becerra helped administer the state’s medical marijuana program and he attacked pot’s Schedule I status, telling the Los Angeles Times in 2017 that “The federal government has to catch up and get into the 21st century.” It’s hard to see how Becerra could possibly recommend that pot remain a Schedule I substance, Hudak said, given everything Becerra has fought for over the last decade.
In theory, a drug’s scheduling should be guided by scientists making decisions based on the best available data. But politics has always affected federal drug policy, whether it’s Nixon outlawing pot in the 1970s or Congress creating the discriminatory disparity between crack and cocaine penalties. But this time, with Biden’s announcement, the politics are in pot’s favor.