Biden’s DEA Proposes to Reschedule Marijuana Rather than Decriminalize It, Advocates Say Marijuana Must Be Descheduled

Today, the Associated Press reported that the Drug Enforcement Administration (DEA) is proposing rescheduling marijuana from a Schedule I drug, the most restrictive class, to a Schedule III drug, a less restrictive class. Under this proposed shift, marijuana criminalization would continue at the federal level and most penalties, including those for simple possession, would continue as long as marijuana remains anywhere on the Controlled Substances Act (CSA). On the 2020 campaign trail, then-candidate Biden repeatedly pledged to decriminalize marijuana and expunge related criminal records – identifying these issues as barriers to racial equity. However, the DEA’s proposal would leave most of the harms and racial disparities associated with criminalization unaddressed.

“Supporting federal marijuana decriminalization means supporting the removal of marijuana from the Controlled Substances Act, not changing its scheduling” said Cat Packer, Director of Drug Markets and Legal Regulation. “We all deserve a federal framework for marijuana that upholds the health, wellbeing, and safety of our communities – particularly Black communities who have borne the brunt of our country’s racist enforcement of marijuana laws. Rescheduling marijuana is not a policy solution for federal marijuana criminalization or its harms, and it won’t address the disproportionate impact that it has had on Black and Brown communities.”

Packer continued: “The individuals, families and communities adversely impacted by federal marijuana criminalization deserve more. Workers in the marijuana industry, people who use marijuana, all of us deserve more. Congress and the Biden Administration have a responsibility to take actions now to bring about marijuana reform that meaningfully improves the lives of people who have been harmed by decades of criminalization. Descheduling and legalizing marijuana the right way isn’t just good policy, it’s popular with voters, too.”

A majority of American voters support marijuana legalization and comprehensive reform, according to a Data for Progress poll. Policymakers, health professionals and criminal justice advocates agree that marijuana must be removed from the CSA and coupled with comprehensive Congressional legislative reform to address racial disparities, reduce harm, and move toward a federal marijuana policy and regulatory framework that benefits all communities. Descheduling has also amassed significant support in Congress, with Representatives Blumenauer (D-OR), Joyce (R-OH), Lee (D-CA), and Mast (R-FL) leading their Congressional colleagues in two letters (in December 2022 and October 2023) to the DEA calling for descheduling marijuana, and Senator Warren (D-MA) leading eleven of her colleagues, including Senate Majority Leader Chuck Schumer (D-OH), urging President Biden’s Administration to remove marijuana from the CSA.

The Drug Policy Alliance and its coalition partners at United for Marijuana Decriminalization (UMD) plan to launch an ambitious outreach effort to encourage community members to tell President Biden and the DEA that marijuana must be descheduled once the public comment period is open. Members of the public will be able to submit comments in support of descheduling in response to the DEA’s proposal through a simple online form. During the brief, time-limited public comment period, UMD aims to solicit a historic number of public comments through extensive outreach to stakeholders, particularly those who have been harmed by marijuana criminalization, inviting participation in the public process and emphasizing the need for marijuana descheduling.

To end federal marijuana criminalization and create marijuana laws grounded in health, safety, and racial equity, the Drug Policy Alliance, fellow advocates, and Congressional leaders are calling on the DEA to deschedule marijuana by fully removing it from the CSA. While descheduling is critical to eliminating the ongoing harms of federal criminalization, marijuana reform can also take place through Executive Orders and Congressional legislation. President Biden can come closer to fulfilling his promise to end marijuana criminalization by taking immediate action to mitigate the harms of marijuana prohibition in people’s lives.

Additionally, Congressional legislation should provide relief from previous marijuana convictions, restore rights and benefits to people impacted by marijuana criminalization, reinvest in communities disproportionately harmed by criminal enforcement. Additionally, Congressional legislation should create a regulatory framework rooted in equity that prioritizes public health, workplace safety, and fair economic opportunities for small businesses. The House of Representatives has twice passed the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, a comprehensive descheduling bill with extensive criminal justice reform and community reinvestment. In 2022, the Senate introduced the Cannabis Administration and Opportunity Act (CAOA), the most comprehensive Congressional descheduling bill to date.

Rep. Barbara Lee (CA):

“While the rescheduling of marijuana is a historic step in the right direction, anything short of descheduling falls woefully short of remedying the harms of the current system and the failed racist War on Drugs,” said Rep. Lee. “Rescheduling would allow for the criminal penalties for recreational and medical marijuana use to continue – disproportionately impacting Black and Brown communities. The criminalization of marijuana is also increasingly out of step with state law and public opinion. We need full descheduling and to pass the MORE Act – which I proudly co-lead – as a solution for equitable comprehensive marijuana reform rooted in racial and restorative justice.”

Senator Kirsten Gillibrand (NY):

“Descheduling marijuana from the Controlled Substances Act is not just a social justice issue; it’s an economic, medical, and public safety issue. Since marijuana was classified as a Schedule I substance during the war on drugs, countless lives have been torn apart, and individuals in primarily Black and brown communities have been targeted for nonviolent cannabis-related offenses,” said Senator Gillibrand. “Studies show that legalizing marijuana could help reduce violence in international drug trafficking and generate billions of dollars for the economy. The vast majority of Americans agree that marijuana should be legalized – that’s why I’m calling on the Attorney General and the Drug Enforcement Administration to swiftly deschedule marijuana from the Controlled Substances Act.”

Rep. Jerry Nadler (NY):

“While rescheduling marijuana is an important step, we must go further. It is time to end the prohibition and criminalization of marijuana at the federal level. That’s why I have introduced the Marijuana Opportunity Reinvestment and Expungement Act, or the MORE Act, which would not only decriminalize marijuana under federal law, but it would also expunge federal marijuana convictions and encourage states to do the same. The bill would also establish a fund to support programs assisting those communities who were most directly harmed by the War on Drugs and ensure that they have equal access to the benefits of decriminalization.”

Amber Senter, Co-Founder, Board Chair, and Executive Director, Supernova Women:

“There’s no doubt that the United States government recognizing cannabis has medicinal benefits is anything short of historic. Advocates have worked tirelessly for decades to reach this moment, banding together as patients, caregivers, social justice activists, and community members. However rescheduling cannabis to Schedule 3 is not enough. People will continue to be criminalized and punished for possessing and consuming cannabis, risking employment, housing, benefits and more. Workers in the cannabis industry will run the risk of federal prosecution for simply going to work and trying to provide for themselves and their families. Patients using cannabis as medicine through legal or state medical programs will also run the risk of federal criminalization by simply choosing a less harmful way to cope with pain from debilitating medical conditions. The war on drugs will continue to rage on, destroying lives and families as it’s done for decades. As a business owner in cannabis, I recognize the much-needed tax relief that rescheduling cannabis to Schedule 3 will bring. However, we cannot continue to allow some to capitalize from cannabis while others, primarily black and brown people, continue to be punished with their lives ruined. We must deschedule cannabis and stop criminalization for a medically beneficial plant.”

Chelsea Higgs Wise, Executive Director, Marijuana Justice:

“Since prohibiting marijuana there has been a targeted enforcement that has left communities of color disproportionately harmed at the individual, familial and community level. Rescheduling only brings benefits to businesses through tax relief, while our loved ones are left with the guarantee of repetitive surveillance, imprisonment, and collateral consequences. Any federal reform must directly address the disproportionate enforcement Black families continue to face. Presidential pardons are important but for true repair, we must continue to demand for marijuana to be descheduled along with people released and records expunged.”

Michelle Rutter Friberg, Director of Government Affairs, National Cannabis Industry Association:

“While rescheduling marijuana to Schedule III will undoubtedly provide much needed tax relief to cannabis businesses, the Biden Administration and Congress must act to deschedule marijuana and remove it from the Controlled Substances Act entirely. Only descheduling marijuana will harmonize federal law with the 37 states with some form of legal cannabis commerce, allow for the implementation of sensible regulations on hemp and marijuana derived products, and create a level playing field for small and minority owned businesses in the industry.”

Dr. Rachel Knox, MD, MBA, Board Chair, Association for Cannabis Health Equity and Medine (ACHEM):

“Cannabis must be removed from the Controlled Substances Act. From inception, its scheduling has been public health enemy #1, as it has underpinned decades of racist and classist provocation, perpetuating systemic harms directly linked to generational poverty and escalating health disparities in marginalized communities. Rescheduling does nothing to unravel this framework and, in fact, will allow it to continue unchecked. The only remedy to this chronic threat is descheduling, the swift overhaul of discriminatory cannabis policies across all sectors, and thoughtful regulation of diverse cannabis markets with standards rooted in science and social justice.”

Lt. Diane Goldstein (Ret.), Executive Director, Law Enforcement Action Partnership:

“As the failed policies of marijuana prohibition continue to drag on and waste law enforcement resources, the DEA’s move to reschedule marijuana to a less restrictive class would simply not go far enough,” she said. “It would not end federal marijuana criminalization and would do little to rectify the harms of the current system, in which an arrest record can lead to fewer employment opportunities, limited housing options, and obstacles to obtaining loans, all of which make people more, not less, disposed to crime and further drug use. The only way to end this unnecessary criminalization and its harms is to completely remove marijuana from the Controlled Substances Act.”

Dasheeda Dawson, Chair, Cannabis Regulators of Color Coalition and Founding Director, Cannabis NYC:

“The time for descheduling cannabis is not just a matter of policy; it’s an imperative for justice and equity. Rescheduling would undermine the hard-fought progress made by cannabis equity and policy reform leaders like the Cannabis Regulators of Color Coalition, jeopardizing the livelihoods and futures of those entrepreneurs and communities disproportionately affected by past criminalization. We cannot afford to backtrack on our commitment to repair the harm inflicted by outdated policies. Descheduling is not just about legality; it’s about rectifying historic injustices and ensuring a fair and inclusive future for all.”

Weldon Angelos, President & Co-Founder, The Weldon Project:

”As an advocate for ending federal marijuana prohibition, I acknowledge that the DEA’s decision to reschedule marijuana as a Schedule 3 substance is a significant step – but it’s far from the inevitable ultimate destination where marijuana is no longer treated as contraband in America’s failed war on drugs. Only the complete descheduling of marijuana will begin to dismantle the barriers of a nationwide criminal ban and ensure that no further damage is inflicted after decades of misguided federal policies. As we navigate this pivotal moment, our actions must be bold and unequivocal to ensure justice and equity for all those who have suffered under the weight of prohibition. If our ultimate goals are to liberate and restore American communities, now is not the time to settle for half measures or, worse yet, to declare victory and pretend like everything’s been solved. It hasn’t.”

Background:

38 states have laws that allow for medical cannabis use and 24 states have laws that allow for adult recreational cannabis use. Despite these reforms at the state level – as long as marijuana is a scheduled substance under the CSA, the repercussions of federal marijuana criminalization will continue – even for conduct that is authorized under state law. Individuals could still face criminal penalties, including mandatory minimum sentences, for personal use and distribution. Additionally, under a Schedule III classification, people with marijuana-related convictions could still lose access to federal housing and food benefits, or even face deportation. According to the ACLU, over 80% of people sentenced for federal marijuana charges were Black or Latino. This is a clear indication that maintaining federal criminalization in any form will perpetuate racially discriminatory policing and enforcement.

Learn more about federal marijuana scheduling here.