Biden’s marijuana plan is out of step with public opinion

Marijuana policy recommendations promulgated this week by the Joe Biden campaign fall well short of the changes necessary to adequately address the historic and ongoing failures of federal cannabis prohibition.

Specifically, the plan calls for rescheduling the marijuana plant under the Controlled Substances Act — a move the campaign insists will lead toward its eventual “decriminalization.”

Unfortunately, rescheduling cannabis from Schedule I of the CSA to a lower status is both impractical and counterproductive.

While current federal law categorizes and regulates marijuana like heroin (both are categorized as Schedule I controlled substances), rescheduling the plant to a Schedule II drug (like cocaine or oxycodone) — as the candidate proposes on his website — or even a Schedule III drug (like anabolic steroids) is similarly inappropriate.

Such a change would restrict adults’ ability to legally access the substance to those with a doctor’s prescription only and would continue to maintain criminal penalties for anyone who possesses the substance to absent such authorization. 

Further, the federal policies in place that stifle researcher’s ability to clinically study cannabis — such as the requirement that all source material be purchased from the University of Mississippi’s federally licensed marijuana cultivation program — are regulatory requirements that are specific to marijuana, not to other Schedule I substances.

Simply rescheduling the plant from Schedule I to a lower status neither amends these regulatory hurdles nor does it facilitate the type of clinical trial research on cannabis that the Biden campaign has repeatedly called for.

In addition, the campaign’s call for marijuana decriminalization is only half a loaf. Decriminalization, a policy that replaces criminal penalties for low-level possession offenses with civil sanctions, keeps the illicit marijuana marketplace intact. This policy does nothing to reduce the size of the illicit cannabis market, nor does it bring any needed controls to this market. Under decriminalization, marijuana production and distribution remain dominated by criminal entrepreneurs rather than by licensed businesses, and these underground transactions remain unregulated and untaxed.

Most problematically, decriminalization continues to classify cannabis as contraband, thereby assuring that police will continue to routinely interact with communities — and communities of color especially — in order to maintain the failed policy of marijuana prohibition. Under this policy, police will issue citations to those who possess small quantities of cannabis and law enforcement will continue to use force, when necessary, to seize marijuana and marijuana-related contraband – sometimes with tragic consequences.

As reported in April by the American Civil Liberties Union, Black Americans are 3.6 times more likely to be arrested for a marijuana crime than white Americans despite using cannabis at similar rates. In many instances, decriminalization perpetuates this reality.

For example, police officers in New York City for decades continued to disproportionately target African Americans and Latinos for marijuana-related violations despite the state having decriminalized the offenses in the late 1970s. In short, decriminalizing cannabis will do little to discourage this sort of police misconduct.

Finally, the Biden plan is out of step with the sort of seismic changes in marijuana policy that voters are consistently demanding — in polls and at the ballot box. According to nationwide polling data compiled by the Pew Research Center, majorities of both Democrats and Republicans desire cannabis use and retail sales to be legalized for adults. Polling compiled by Gallup finds similar results. Currently, and estimated one in four Americans reside in a jurisdiction where adult-use cannabis sales are permitted, and voters in several additional states are set to decide on similar measures this fall. 

Rather than calling for cannabis to be rescheduled and decriminalized, the Biden campaign should pledge to de-schedule and legalize the plant. Only by removing marijuana from the CSA in a manner similar to alcohol (which is unscheduled under federal law) can the government amend federal marijuana policy in a manner that comports with state laws, public opinion, scientific consensus, and the plant’s rapidly evolving cultural status. And only via legalization can state and local regulators impose necessary controls, oversight, and best practices to the marijuana market. 

This why candidate Biden should join with many of his Democratic colleagues – such as Rep. Jerrold Nadler (D-N.Y.) and Sen. Kamala Harris (D-Calif.) — in support of HR 3884/S 2227: The Marijuana Opportunity, Reinvestment, and Expungement Act. The Act, which passed the House Judiciary Committee late last fall, removes cannabis from the Controlled Substances Act so that states, not the federal government, possess the flexibility and authority to regulate cannabis within their borders as best they see fit — without the threat of undue federal interference.

The Act also makes other important changes. For instance, it allows physicians affiliated with the Veterans Administration to recommend medical cannabis access to qualified patients, and it incentivizes states to facilitate the process of reviewing and expunging the records of those with convictions for low-level marijuana violations.

It’s time to stop recommending Band-Aid fixes for American’s broken criminal justice system. Americans have rejected the failed policies of cannabis criminalization and it is time for the Biden campaign to reject them too.

Paul Armentano is the deputy director of NORML — the National Organization for the Reform of Marijuana Laws — and he is the co-author of the book “Marijuana Is Safer: So Why Are We Driving People to Drink?“