Biden’s “Taking Care” Of Federal Cannabis Laws, But Is it Enough?

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    Biden may have reaffirmed his commitment to federal marijuana policy reform, but simply rescheduling won’t help those who have been most harmed by prohibition, say activists.

    Whilst at a campaign event in Wisconsin on Wednesday, the President responded to a sign held by a cannabis activist stating “no one should be jailed,” to assure them he was “taking care of that.”

    But campaigners claim that the only way for Biden to “fulfill his promise” is for cannabis to be removed entirely from the Controlled Substances Act.

    It comes as Vice President Kamala Harris told a roundtable discussion on Friday, March 15, attended by a number of Presidential pardon recipients, that the DEA needs to reschedule “as quickly as possible”.

    Following a HHS review, instructed in October 2022 by President Biden, which recommended marijuana be moved to a Schedule III drug, the Drug Enforcement Administration confirmed it was conducting its own evaluation in January.

    But behind closed doors, the VP reportedly went one step further, stating “we need to legalize marijuana”, Chris Goldstein, regional coordinator for NORML and one of those in attendance, told Marijuana Moment.

    In a newsletter distributed by NORML ahead of the event, Goldstein said that he intended to use his time with Harris to “bring further awareness to the Presidential pardon process and to emphasize the need for further federal action, such as descheduling cannabis.”

    Both President Biden and Vice President Harris pledged to federally decriminalize marijuana on the 2020 campaign trail. But some are concerned that their actions haven’t gone far enough to achieve this.

    From a regulatory perspective, moving marijuana to Schedule III would see the substance classed in a lower risk category, alongside the likes of Tylenol with codeine and anabolic steroids, as well as acknowledgement of its “currently accepted medical use.”

    However, other than potential tax benefits for businesses, it’s not fully clear what the impact of this would be on individuals—if any at all.

    Marijuana would still be classed as a controlled drug under the CSA and therefore people would still be criminalized and prosecuted for its use.

    And while it could potentially be prescribed for medical use under Schedule III, products would first need to obtain FDA approval.

    “President Biden, particularly during his 2020 election campaign, and largely when communicating to Black and brown communities, promised a decriminalization of marijuana use and expungement of records,” says Cat Packer, director of Drug Markets and Legal Regulation at the Drug Policy Alliance (DPA), and vice chair of the Cannabis Regulators of Color Coalition, during a video interview.

    “Rescheduling marijuana as Schedule III would continue the very criminalization that Biden said that he would end.

    “My concern is that this is going to be sold as a victory for all—and particularly a victory for Black and brown communities—when in reality, these are going to be the very communities that are left behind.”

    ‘Criminalization Is A Racial Equity Issue’

    Black and brown communities have been disproportionately affected by criminalization since the ‘War on Drugs’ began.

    “We know based on the data that Black and brown individuals are almost four times as likely to be convicted for cannabis use despite equal rates of usage across those demographic lines,” says Sarah Gersten, executive director and General Counsel of The Last Prisoner Project (LPP), in a phone interview.

    “Unfortunately, we still have hundreds of thousands of arrests for just simple possession of marijuana today. Despite the vast majority of states legalizing it and despite the federal government looking to change their position on cannabis policy, this is still happening to hundreds of thousands of people every year.”

    In fact, according to figures cited by Diane Goldstein of LEAP (Law Enforcement Action Partnership) during a recent press conference held by the DPA of the 11.8 million arrests for drug-related offenses since 2011, arrests for simple possession of cannabis account for approximately 35% of all drug arrests—and make up a total of 16.5% of all arrests in the U.S.

    Even President Biden, on the campaign trail, acknowledged that while Black and brown people use marijuana at similar rates, they are disproportionately arrested, prosecuted and convicted, Packer highlighted.

    “Black and brown communities expect and demand more because we know that the Biden administration knows that marijuana criminalization is a racial equity issue,” she said.

    “But personal acknowledgement is not the same as systemic change and the Administration’s rhetoric simply doesn’t match the reality.”

    The Racist Roots Of Prohibition

    During the 1930s, Harry J Anslinger, who served as the Commissioner of the Federal Bureau of Narcotics (FBN) for more than 30 years, popularized the term “marijuana” to emphasize a foreign connection to what was described as the new “devil weed.”

    But it was President Nixon who officially declared the ‘War on Drugs’ in June 1971 when he described drug use as “public enemy number one” and increased federal funding to ramp up law enforcement efforts.

    Years later, John Ehrlichman, assistant to President Nixon for Domestic Affairs from 1969 to 1973 would be quoted as saying: “You want to know what this [war on drugs] was really all about? The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people.

    “We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

    And yet on Thursday, February 1, the first day of Black History Month, the DEA shared a “throwback Thursday” post on X, celebrating President Nixon and the role he played in the establishment of the DEA.

    The post read: “#TBT On Dec. 14, 1970, at the White House, the International Narcotic Enforcement Officers’ Association presented President Nixon with a ‘certificate of special honor’ in recognition of the outstanding loyalty and contribution to support narcotic law enforcement. #DEAHistory”

    Despite thousands of outraged comments from followers, the post was still live at the time of going to press.

    It signals a real disconnect between the promises made, the intention behind those promises, and the willingness of the federal government to even acknowledge the harms,” says Packer.

    “[Biden] said he wanted to end the failed policy, to right those wrongs, but we can’t right wrongs if we can’t even acknowledge them—and we’re actually celebrating them.”

    The DEA did not respond to our request for comment.

    ‘No One Should Go To Jail For Smoking Weed’

    As for Biden’s promise that “no one should have to go to jail for smoking weed”, while he has issued a number pardons, these have been limited in scope and impact, according to Gersten, as they only relate to possession offenses—of which there are very few at a federal level.

    This was echoed during the briefing by Keeda Haynes, federal policy analyst at the National Council of Formerly Incarcerated Women and Girls, who served over four years in federal prison for a marijuana-related offense.

    “It should be noted that not a single person has been released from prison because of a pardon by President Biden,” she said.

    “A vast majority of those incarcerated at the federal level are not charged with simple possession, but are charged with more complex marijuana offenses that carry higher criminal penalties.”

    Earlier this week, 36 House members, including Rep Barbara Lee and Rep. Earl Blumenauer, sent a letter to the President calling for clemency for those who are incarcerated in federal prison for nonviolent marijuana charges.

    Campaigners are calling for the pardons to be expanded beyond possession charges, and for the expungement of criminal records, something which rescheduling wouldn’t achieve, Haynes pointed out.

    Nor would it restore access to rights such as food, housing, employment, or education for those who are currently denied it due to past convictions.

    “Collateral consequences for drug-related offenses—which can include disenfranchisement, barring individuals from public benefit programmes and housing discrimination— don’t end when you get a pardon. These legal barriers will follow you for the rest of your life,” said Haynes.

    Despite the fact that the majority of U.S citizens now live in a state where cannabis is decriminalized, since 2003, ICE has deported over 45,000 immigrants whose most serious offense was marijuana possession.

    “Removing marijuana from the CSA is the only way we can stop the detention and deportation of non-citizens for marijuana activity,” said advocate Alejandra Pablos, who has been fighting her own deportation case for over a decade.

    “It’s the only way we can put an end to family separation and the suffering faced by immigrant communities.”

    She added: “In my community in Arizona, we see so many people who are facing life-altering immigration and criminal justice punishments for marijuana activity. The President has said no one should be in jail just for possessing marijuana. Well, no one should be deported either.”

    A Backward Step For Medical Access?

    According to Dr Rachel Knox, board chair of the Association for Cannabis Health Equity and Medicine, classifying cannabis as a Schedule III, would also be detrimental to the millions of patients relying on it for medicinal use in states across the U.S.

    While 38 states have now legalized medical cannabis, any cannabis-derived products would have to go through the FDA approval process in order to be legally prescribed.

    “Proponents proclaim it a boon to research, patient access and public health, but this couldn’t be farther from the truth,” Knox told members of the press during the briefing.

    “The Medical Marijuana and Cannabidiol Research Expansion Act signed into law on December 2, 2022 already removed many of the existing barriers to research. Only descheduling can facilitate the comprehensive real-world, plant-based research needed to accelerate the investigation of cannabis safety and efficacy and across the wide range of product forms and uses for at least six million registered patients in our country.”

    She added: “Scheduled III will not serve these patients, absent state access whether that’s a medical only programme or adult-use, would subject patients to the FDA’s lengthy approval process for what would likely amount to a limited number of isolated compounds rather than the whole-plant preparations which patients currently use now and find effective.”

    ‘Deschedule Or Do Nothing’

    With the Vice President’s comments at Friday’s roundtable raising hopes for an end to federal marijuana prohibition, advocates will be watching the White House closely to see if the administration will make good on its promise of decriminalizing, or continue to use it as rhetoric to win votes.

    “Rescheduling marijuana without further action would fail to deliver on President Biden’s promises to Black and brown communities, and risks leaving the very individuals and communities that have borne the brunt of cannabis criminalization behind,” says Packer.

    When the DEA announcement does eventually come, it is expected that there will be a public comment process where individuals and organizations will have the opportunity to submit feedback.

    The DPA and others are urging members of the public to use this as an opportunity to highlight the fact that not only would rescheduling not fulfill Biden’s promises and fall short of campaigners’ hard-fought efforts, but it could remove any drive for further reforms, potentially undoing progress made in recent decades.

    “Dispelling the myths surrounding rescheduling is paramount,” Dasheeda Dawson, chair of the Cannabis Regulators of Color Coalition, told the media.

    “Contrary to popular belief, rescheduling would not increase access to medical cannabis, or pave the way for nationwide decriminalization. Instead, it would further entrench bureaucratic barriers, and limit research and access opportunities to channels that are already historically excluding Black and brown communities.”

    She added: “We cannot afford to backtrack on the progress we’ve made. Deschedule or do nothing, so we can at least continue our efforts at the state and local level to improve the lives of our constituents, but also better inform comprehensive federal reform to fully decriminalize the plant.”