Is 4/30 the new 4/20?
On April 30, the Justice Department announced that it is recommending a new status for marijuana under federal law. The attorney general’s sign-off all but ensures that the drug will be moved in the coming months from Schedule 1 of the Controlled Substances Act, which imposes a complete criminal ban, to the less restrictive Schedule 3. The U.S. government is at last beginning to retreat from an antimarijuana ideology that has contributed to the incarceration and immiseration of millions of Americans.
As I detail in a new book, drug warriors have blocked this move at every turn for decades. Yet although the announcement marks “a historic step forward,” as Senate Majority Leader Chuck Schumer observed, it comes as too little, too late for those who seek a sensible national drug policy.
Marijuana never belonged in Schedule 1, which is reserved for drugs with “no currently accepted medical use” and “high potential for abuse.” It was placed there on what was said to be a provisional basis when the CSA was enacted, in 1970, until President Richard Nixon’s National Commission on Marihuana and Drug Abuse had a chance to study the issue. The commission called for decriminalization two years later in its final report, Nixon flipped out, and Congress let him renege on the deal.
Reformers then turned to the courts. Numerous judges in the 1970s followed the 2nd Circuit in acknowledging that “there is little or no basis for concluding that marihuana is as dangerous a substance as some of the other drugs included in Schedule I.” But the judiciary ultimately settled on a standard of review so deferential that no challenger could hope to meet it. Drug classifications “may be overinclusive, underinclusive, illogical, and unscientific,” one judge pointed out in 2015, “and yet pass constitutional muster.”
Reformers accordingly petitioned the Drug Enforcement Administration to reschedule marijuana. They might as well have asked the flat-earth society to sell them a globe. In 1989, when the head of the DEA finally got around to rejecting the first such petition, 17 years after it had originally been filed, he overruled the agency’s own chief administrative law judge and refused to credit any of the “pro-marijuana” testimony submitted by doctors and patients.
The federal government continues to ignore key considerations in deciding how to classify drugs. In other areas of public health regulation, agencies are told to weigh all relevant costs and benefits before choosing a course of action. The DOJ, however, doesn’t even estimate the massive fiscal, social, or autonomy costs of punitive drug policies, which skews its decisionmaking in the direction of Schedule 1.
The government also declines to place any value on the nonmedical rewards that controlled substances may offer. When the Department of Health and Human Services advised in 2015 that marijuana use is “pleasurable to many humans” who show no signs of addiction, this was cited not as a point in marijuana’s favor but rather as evidence of marijuana’s “abuse potential”—and hence its suitability for criminal prohibition.
The pursuit of pleasure hasn’t just been trivialized in this regulatory calculus. It has been pathologized, converted by fiat from a benefit into a cost.
Against this backdrop, it counts as real progress for the DEA to endorse marijuana’s move to Schedule 3. The agency has never granted a rescheduling petition not submitted by a pharmaceutical company. Softening its stance on marijuana took decades of scientific research and grassroots advocacy, along with some not-so-subtle pressure from the sitting president.
This change will have concrete payoffs. Of particular note, Section 280E of the Internal Revenue Code bars companies that traffic in Schedule 1 or 2 drugs from deducting ordinary business expenses. Thousands of marijuana companies will be spared this tax burden once the drug is rescheduled. In addition, some of the seldom-enforced criminal penalties that attach to marijuana offenses under the CSA will be reduced.
Beyond that, however, rescheduling marijuana may accomplish remarkably little. Schedule 3 substances, unlike Schedule 1 substances, can be dispensed with a prescription, but only if they are first approved by the Food and Drug Administration. And the FDA has not approved marijuana. Nor is it likely to do so anytime soon, given (among other things) the “fundamental tension” between its approval process’s focus on testing discrete chemical compounds and the “entourage effect” theory of how medical marijuana works.
State-licensed medical marijuana companies would find it arduous and expensive to satisfy all the CSA’s requirements for producers and distributors of Schedule 3 drugs. But why bother? Marijuana’s lack of FDA approval means that even in the event that they manage to comply with the CSA, these companies would still be violating another federal law, the Food, Drug, and Cosmetic Act, if they sell marijuana items across state lines or use components that come from out of state.
The upshot, as legal scholar Robert Mikos documents in a new paper, is that “rescheduling may amount to no more than a tax cut” for even the most scrupulously law-abiding marijuana suppliers.
All businesses that deal in marijuana will continue to operate in the shadow of criminal sanction, with limited access to banking services (and increased exposure to theft) as well as limited trademark protection, contract enforcement, and other corporate-law privileges. All recreational marijuana activities will continue to be illegal at the federal level. And federal and state laws will continue to pull in different directions. We’ll be moving from one incoherent regulatory regime to another.
Meanwhile, the public health concerns raised by state legalization will remain just as pressing. Marijuana may be significantly safer than Schedule 1 drugs like heroin, not to mention Schedule 2 drugs like fentanyl and unscheduled drugs like alcohol and tobacco. But no psychoactive substance is risk-free. Regulators in legal jurisdictions have to worry about adolescent use, unlicensed products, accidental and excessive ingestion, and myriad other potential dangers.
The federal government could take a variety of measures to mitigate these risks, from funding pilot programs and research studies to setting labeling and potency standards to assisting states in their efforts to shut down illegal dispensaries and grow sites. At the same time, the government could curb industry consolidation by encouraging state licensing bodies to prioritize local marijuana outfits, while helping minority entrepreneurs access the capital needed to break into a notoriously nondiverse industry or pursuing more ambitious forms of “reefer reparations.”
None of these ideas is novel; many are already reflected in various marijuana bills before Congress. What they require is not a new CSA classification but bold new legislation, ideally eliminating federal criminal penalties while strengthening state administrative capacity. To advance public health and social justice goals while enabling the industry to grow, nothing else is sufficient.
So, let’s give the Justice Department two cheers for finally allowing marijuana to leave Schedule 1, recalling the words of a Connecticut judge who warned in 1976 that such “an irrational classification” would “undermine a fundamental respect for the law” while imposing “staggering” costs on individuals and society. Then let’s demand that Congress take the next historic step toward reefer sanity.
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