Marijuana rescheduling falls short of expectations on Biden

The Biden administration’s recommendation last week for the Drug Enforcement Administration (DEA) to reschedule marijuana marked one of its most significant steps related to the president’s ambitious campaign promise to decriminalize cannabis use. 

But advocates and policy experts say rescheduling marijuana under the Controlled Substances Act (CSA) does not address the plethora of racial justice issues caused by current cannabis laws. 

“Rescheduling doesn’t address … the harm to marginalized communities,” said Natacha Andrews, executive director for the National Association of Black Cannabis Lawyers. 

“It doesn’t address the over policing, it doesn’t address the immigration issues, it doesn’t address the access to federal services, and it’s not in alignment with what 38 states have done to regulate and legalize.”

Under its current scheduling, marijuana is rated at the most stringent level — as a Schedule I controlled substance — on par with methamphetamines and more severe than fentanyl. 

This designation means authorities consider the drug to have no accepted medical use and a high potential for abuse. The Department of Health and Human Services (HHS) has reportedly advised a shift down to Schedule III.

The DEA has final say in changing marijuana’s scheduling and is not bound to abide by HHS’s recommendation.

“My initial reaction is that this is less than what the Biden administration promised specifically,” said Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance (DPA). 

“This decision kind of leaves me and other communities that are concerned about the harmful impacts of cannabis criminalization wondering how President Biden is going to keep his promises around specifically decriminalizing personal use.”

Changing marijuana’s schedule under the CSA is not the same as decriminalizing marijuana use. 

The Biden administration’s goal for decriminalizing marijuana has been presented as a social justice action from the beginning. During a town hall event in October 2020, then-candidate Biden voiced his opinion that marijuana should be decriminalized and said, “ I don’t believe anybody should be going to jail for drug use.”

Two years later, he followed through on part of his promise when he announced pardons for everyone convicted of marijuana possession under federal law. Along with the pardons, Biden directed the HHS secretary and the attorney general to review how marijuana is scheduled.

When reached for comment for this story, a White House spokesperson reiterated that the review of marijuana’s scheduling is an independent process run by HHS and the DEA. 

Moving marijuana’s designation down to Schedule III would essentially mean the federal government acknowledges marijuana has some medical uses, but it doesn’t change its status as a prohibited substance.

“What Biden promised and what people are crying out for is a combination of decriminalization and equity and neither of those things are even remotely addressed by going from Schedule I to Schedule III,” Andrews said. “It takes people who already have access, who already have resources, who already have connections, who already have politicians in their pocket and it gives them a leg up.”

That’s not to say there won’t be some gains, but they will be minimal, Andrews said. 

“When you look at the realities, there will still be people arrested, there will still be people detained, there will still be people deported. There will still be moms going in for custody battles because they have a legal cannabis card but someone that day felt that they didn’t,” she said. 

Karen O’Keefe, director of state policies at the Marijuana Policy Project, said the larger issue is that the history of cannabis prohibition is still not addressed with rescheduling. 

“White folks and African Americans tend to use cannabis at roughly the same rates,” O’Keefe told The Hill. “Despite that, we see more than three times as many arrests for cannabis possession by Black individuals as we do for white individuals. We see these disparities at every level — at searches, stops, arrests, sentencing and incarceration, and we also have some cases where law enforcement were very explicitly motivated by racism.”

Biden’s pardons last year excluded several groups, like those who were convicted of possessing another substance or had another drug offense as well as people who were not lawful permanent residents at the time of their conviction. And unlike expungements — which Biden alluded to on the campaign trail — the pardons don’t erase convictions from permanent records.

These limitations led some to characterize the White House’s actions as mostly symbolic, which advocates say could be said about rescheduling too.

“Symbolically, the fact that we are changing the policy in the direction away from strict prohibition, that’s a good thing. But the simple schedule change itself doesn’t necessarily alter the facts on the ground,” David Nathan, founder and president of Doctors for Cannabis Regulation, told The Hill.

A change in scheduling won’t allow doctors to prescribe it to patients. The Food and Drug Administration (FDA) would need to approve it as a drug and, according to Nathan, a Schedule III designation is unlikely to encourage the agency to do so. He notes when it comes to botanicals in general, the FDA usually approves extracts of a plant as opposed to a plant itself.

Nathan said physicians like him who are focused on marijuana regulation worry that rescheduling would amount to the Biden administration saying, “OK, we did something and now we’re done.”

It’s also unclear how rescheduling could affect states that have decriminalized or legalized the plant, said Andrews, of the National Association of Black Cannabis Lawyers. 

“It has the potential to derail a lot of state programs,” Andrews said. “The legalization within states violates the order of operations. Not knowing what that next step is going to be that the DEA takes leaves a lot of things in question.” 

By legalization happening from the bottom up, Andrews added, some states could have no issues with the new scheduling, while others could see medical programs disrupted, recreational use affected or other issues. 

“I don’t think any of us know what the final outcome will be,” she said. Andrews predicted pharmaceutical companies will see the most profit from the change — rather than Black and Brown communities.

Other groups have noted that a scheduling change could benefit marijuana businesses — white-owned by a vast majority — which are currently prohibited from deducting expenses from their taxes like other businesses due to selling a Schedule I substance.

O’Keefe, of the Marijuana Policy Project, said the only way for true racial justice is if marijuana is completely legalized. Decriminalization could still lead to police interactions, which can be violent and deadly, and which disproportionately target Black individuals, she said. 

Legalization also needs to include “reparative justice,” she added. 

“Reparative justice measures things like removing the stigma, removing old criminal convictions, freeing prisoners, having set up so you have employment training and assistance for disproportionately impacted and Black and Brown communities to own cannabis businesses,” O’Keefe said. “So, at the bare minimum, I think legalization is what’s needed federally.”