NORML on the next steps toward federal cannabis legalization
Biden's executive actions are important. Now it's up to Congress to act.
By Thor Benson
After largely ignoring cannabis issues since he took office, Biden announced earlier this month he’s going to pardon everyone who has been convicted of simple marijuana possession at the federal level. Perhaps even more consequentially, he’s ordered the Department of Justice and the Department of Health and Human Services to review how cannabis is scheduled under the Controlled Substances Act.
Cannabis is currently a Schedule I drug, alongside drugs like heroin and MDMA. These drugs are deemed to have “no currently accepted medical use and a high potential for abuse.” We’ve obviously learned a lot about cannabis since it became a Schedule I drug in the early 1970s, and it’s been clear for a long time that it’s not dangerous or highly addictive. It also has many medical uses.
Biden’s first moves here are a good start when it comes to addressing our antiquated cannabis laws and repairing some of the damage done by the War on Drugs. Most cannabis convictions are at the state level, and Biden has instructed governors to look at how they can follow his lead with pardons and the expungement of criminal records. That’s great, and it’s important, but Democrats need to more fully embrace legalizing cannabis at the federal level.
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Legalization is very popular, and it’s bipartisan. A Gallup poll from late last year found nearly 70 percent of Americans support it. That’s 83 percent of Democrats, 71 percent of independents, and about 50 percent of Republicans. A recent Morning Consult poll found 44 percent of Americans believe legalization should be a “top priority” or an “important priority” for Congress.
Many Democrats have embraced legalization, but it’s often seen as a side issue. Most candidates running this year have barely talked about it — save John Fetterman. It’s hard to find an issue this popular, and Democrats should be more vocal about getting legalization done. Biden should get behind legalizing cannabis and put pressure on Congress to do it. It’s the right thing to do, and it’s good politics.
With Biden’s recent moves in mind and with this issue getting more attention generally, I decided to talk to Morgan Fox, the political director at NORML, about what Biden has done so far and what needs to happen next. A transcript of our conversation, lightly edited for clarity, follows.
What do you think about Biden pardoning people with cannabis possession on their record?
This was relatively unexpected considering NORML and other groups have been pressuring the administration for about two years now to follow through on his campaign promises. It’s definitely great to see this happening. Obviously, the number of people that it directly impacts is very small considering that the vast majority of arrests happen at the state level, but this is going to have very real positive impacts on real human being’s lives. It’s an excellent step in the right direction.
Even more so, the fact that he’s pressuring governors to expedite and facilitate their own expungement processes is a great signal for the White House to be sending.
And what about Biden directing the DOJ and HHS to look at changing cannabis’ scheduling?
The fact that he’s calling for a review of cannabis’ Schedule I status is really wonderful because while rescheduling is not ideal and descheduling is really the only way to eliminate the state-federal conflict, the completely inappropriate placement of cannabis on Schedule I is going to quickly come to light. It’ll be something federal regulators are talking about much more in the near future. Overall, I think this is a huge, positive boost for the issue.
Do you think the most likely outcome of that is a reclassification, and what would be the effects of that?
I think that the most likely outcome is that there’s going to be a general consensus that Schedule I is inappropriate. It’s tough to tell exactly what will happen at that point. I think any efforts to reschedule will probably be very slow. In that time period, Congress will have the opportunity to deschedule.
Can Biden, along with his agencies, just completely deschedule cannabis?
It’s complicated, but the simplest answer is not really. It’s going to be up to Congress to deschedule cannabis. The federal agencies have a fair amount of leeway to reschedule cannabis or at least promote its rescheduling, but removing it entirely from the Controlled Substances Act is something that is much easier for Congress to do.
So rescheduling would change the criminal penalties and make cannabis easier to research? Is that right?
It depends on what schedule it’s on. At the same time, it doesn’t resolve the state-federal conflict between adult use states and federal law. Anything Schedule III and above would basically force any state cannabis stores to get pharmacy licenses, which would throw every single state program into total chaos if you wanted to be in line with federal law.
So that’d be worse …
Significantly worse. We’ve been pushing for descheduling not rescheduling for years.
Everybody recognizes the utility of reescheduling at the federal level, but if you look at what impact it would have on existing state programs, it would completely decimate them and force them to be completely revamped if they wanted to be in line with federal law. Clearly they’re not in compliance with federal law right now, so there would be no impetus for them to do that were cannabis rescheduled. The conflict would remain.
It seems like some Democratic governors are hearing what he’s saying when it comes to pardons and are looking at doing that. I’m not seeing that so much from Republicans. Do you think this is going to be mostly something Democratic governors act on?
There are a number of states that have expedited their expungements and sealing processes that are deep red states. I think it remains to be seen what actions governors and state legislatures are going to take in response to this. I’m hopeful they will start facilitating this in a much more effective fashion. It’s an expensive process, and providing federal funding to help facilitate that would be a huge win.
We’re approaching the midterms, and Democrats could really have grabbed this issue a lot earlier. Legalization is popular. Why do you think they haven’t been very focused on this?
I view it as a political miscalculation. There are a number of people who are up for reeelection or candidates who are up for election that are trying to unseat Republicans who are afraid of being attacked on this issue. They don’t view it is a high priority, and it’s an easy opening for their opponents to attack them.
People will say there are so many issues to work on and they’re working on cannabis as if they can’t walk and chew gum at the same time. I don’t think those arguments are going to appeal to anybody who isn’t already pretty entrenched in their own voting patterns. I’ve never thought Democrats should worry about those potential attacks.
This seems like it’s Biden’s first step when it comes to cannabis issues. What do you hope he does next?
It would be great to see an official reinstatement of the Cole Memo [which limits federal intervention in state laws legalizing marijuana]. Keep up the drum beat for Congress to enact sensible reforms, even if they’re incremental. That would be really helpful. He’s gotten close to the limit of his power as the executive, so it’s difficult to really ask for more other than to just be more public about it.
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That’s it for this week
Aaron will be back with more Monday.