Marijuana Reform Advocates Worry Biden Administration Won’t Decriminalize It

President Joe Biden announced last week his administration would review whether marijuana is really as bad as heroin, an absurd position the U.S. government has repeatedly reaffirmed over the past half-century.

But marijuana reform advocates worry the review won’t lead the government to a much more enlightened stance on the most popular illicit drug in the U.S.

The federal Controlled Substances Act lists marijuana as a “Schedule I” drug, meaning the government believes it has a high potential for abuse, no medical use and that there’s no safe way to use it even under medical supervision.

The National Organization for the Reform of Marijuana Laws first petitioned for a reconsideration of marijuana’s status in 1972, with no luck. The government has denied several other petitions since then, most recently in 2016, even as most states have legalized pot for medicinal or recreational use.

Paul Armentano, deputy director of NORML, is not super optimistic that the latest federal review will result in decriminalization.

“There’s almost a five-decade-long history of these sorts of reviews being initiated,” Armentano told HuffPost. “None of those reviews have ever resulted in an outcome that has led to either the rescheduling or de-scheduling of cannabis.”

Groups like NORML and the Drug Policy Alliance want marijuana removed from the Controlled Substances Act, not just moved to one of the less restrictive schedules. Biden announced the review alongside a blanket pardon for thousands of people convicted of simple marijuana possession at the federal level.

But Biden said last week that he would ask his attorney general and his Department of Health and Human Services “to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law” – not that the scheduling has to change in a certain way.

Biden said in October he would ask the attorney general and Department of Health and Human Services to review the scheduling of marijuana with no mention of actually changing its status.

Photo by Kevin Dietsch/Getty Images

During a briefing with reporters, a senior administration official stressed that the review would not necessarily result in de-scheduling or any predetermined outcome.

“Let me just emphasize: The president is asking [the HHS secretary] to undertake a review, not to de-schedule or any particular schedule,” the official said, speaking on condition of anonymity. “He has asked him to undertake the review to assess where ― what ― how marijuana should be classified.”

During his presidential campaign, Biden said marijuana should be classified as a Schedule II drug, breaking from other Democratic candidates who said it should be decriminalized.

Moving marijuana from one schedule to another would not undo the harm caused by the drug’s illegal status, said Maritza Perez, director of the federal affairs office at the Drug Policy Alliance.

“All of the harms we’ve been talking about will remain,” Perez said. “Criminal penalties will attach to it no matter where it lands on the schedule unless it’s complete de-scheduling. Immigration consequences will attach unless we completely schedule. State programs will be out of compliance with federal law. And, of course, research may be in jeopardy to some degree.”

The federal government spent five years considering the most recent petition to change marijuana’s scheduling, with HHS providing input to the Justice Department in a process similar to the one starting now, before ultimately saying no in 2016.

“HHS concluded that marijuana has a high potential for abuse, has no accepted medical use in the United States, and lacks an acceptable level of safety for use even under medical supervision,” the Drug Enforcement Administration wrote in a 60,000-word rulemaking notice that cited more than 200 sources.

Perez said she wanted to be hopeful that a new administration would look at cannabis with fresh eyes, but she’s doubtful. “It would be pretty radical for the government to recommend de-scheduling of marijuana,” she said. “I hope that that’s where they go, but I’d be surprised.”

A major difference between this review and all previous ones is that this is the first one initiated by the federal government rather than outside petitioners. Administration officials said the new review would “proceed swiftly,” and HHS Secretary Xavier Becerra said he’ll move as fast as possible while maintaining there’s no predetermined outcome.

“It’s not new science, but there’s a lot of information to gather because, in many states, marijuana has been legalized for either medical purposes or recreational purposes,” Becerra said last week.

Armentano said Congress still ought to change the law. He noted that lawmakers had no problem removing hemp from the Controlled Substances Act as part of a farm bill in 2018.

Nevertheless, Congress seems hopelessly stuck on cannabis. The House passed a major decriminalization bill in April. Still, a similar measure has stalled in the Senate, where it faces potentially unanimous opposition from Republicans and even a few Democrats.

There has been a lot of new research on marijuana since 2016, including a 2017 report by the National Academies of Sciences, Engineering, and Medicine that found cannabis has legitimate therapeutic uses, including for chronic pain and for treating nausea in cancer patients undergoing chemotherapy. Those findings should obviously disqualify marijuana from its current place in the Controlled Substances Act.

“The problem has never been that we don’t have adequate research,” Armentano said. “The problem is we have a narrative surrounding cannabis in this country and a public policy surrounding cannabis in this country that is divorced from what the scientific record said. That has always been the case, and it remains the case today.”

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