The DEA says ‘no’ to rescheduling marijuana

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On August 11, the Drug Enforcement Administration (DEA) rejected two petitions to reschedule marijuana from a Schedule I to a Schedule II drug in the Controlled Substances Act (CSA). Rescheduling would not have changed marijuana’s federally illegal status, but would have demoted it from the list of drugs that the DEA considers to have no medical use to one that at least acknowledges some medical purpose.

After the DEA’s announcement, U.S. Representative Jared Polis issued a statement vehemently expressing dissatisfaction with the decision: “To keep marijuana as a Schedule I drug is frustrating, unscientific, and, frankly, out of touch. It is ridiculous to classify marijuana alongside other Schedule I drugs like heroin.”

Aware of the high degree of public interest and controversy that would surround their announcement, the DEA wrote two letters, one to each rejected petitioning party, describing their twofold basis for their decision. 

The first is that marijuana does not meet the standards set forth in the CSA requiring scientific evidence proving the drug has medicinal properties. But, without rescheduling, marijuana is not eligible for such research — a vicious and self referential cycle says Michael Collins of the Drug Policy Alliance (DPA), a drug policy reform nonprofit in New York.

“The DEA has created, very deliberately, a circular problem and it is important to look at how this exposes the flawed logic at the DEA,” he says. “From our point of view it is in the same category as climate change deniers who reject rigorous climate science as completely flawed. Keeping marijuana as a Schedule I drug because there is not enough research is flawed logic because the DEA is the gatekeeper of research.”

(In the pursuit of clarity, the DEA recently told NPR it has “never denied” an application from a researcher to use marijuana in a medical study.)

The other rationale cited by the DEA is that the United States is responsible to international conventions, namely the Single Convention, to control marijuana by disallowing possession and penalizing trafficking and distribution.

Back in the 1960s, it was the U.S. that was primarily responsible for designing and implementing the Single Convention and they seem to be only one of a few democratic nations still committed to the letter of the law. Internationally, there are a growing number of countries that are either pursuing legalized or decriminalized marijuana, or with laws already on the books doing so.

Within U.S. borders, the tension is even more palpable. 41 states have allowed for medical marijuana in some fashion or another, while 25 states, the District of Columbia and Puerto Rico have fully legalized medical markets and Alaska, Colorado, Oregon, Washington State and the District of Columbia have legalized adult recreational use. Residents of at least five states — Arizona, California, Maine, Massachusetts and Nevada — will vote on legalization initiatives this November.

In recognition of this growing chasm between international, federal and state law, criticisms like Polis’ are becoming increasingly common. In response to the DEA’s rejection, the New York Times editorial board joined dozens of papers across the country in condemning the decision in an op-ed called “Stop Treating Marijuana like Heroin” that argued: “Removing marijuana from Schedule I would be ideal. Reducing research restrictions and lessening penalties for users would be a step in the right direction.”

The current setup of operating legal marijuana markets in states while simultaneously upholding federal prohibition introduces a slew of problems. Businesses do not have access to banking relationships, there are tax disadvantages for the industry and they cannot perform any business across state lines. But that is not to say that rescheduling would have solved those problems.

“What rescheduling would actually mean for today’s legal cannabis business is really unclear,” says Nancy Whiteman of the Cannabis Business Alliance. “Some people say it would essentially be handing the industry over to the pharmaceutical industry, but how any of this would actually play out we can’t fully understand at this point in time.”

There are also a host of human rights implications at stake when considering “steps in the right direction” in drug policy, but Collins of the DPA says that, from their perspective, rescheduling is an empty gesture.

“It is very meaningless from a social justice point of view,” he says. “It doesn’t do anything when it comes to ending arrests or to reconciling state law with federal law. It really doesn’t do anything. It would be a symbolic victory, but even then it wouldn’t have any real-world impact.”

As pressure mounts toward a reconciliation between state and federal drug laws on marijuana, politicians, industry players, journalists, drug policy activists and cannabis consumers all seem eager for a sign that times are changing and, in light of the DEA’s announcement, it looks like they will have to wait a little bit longer.

But marijuana is just the tip of the iceberg when it comes to ending the war on drugs.

“At the DPA, we are very keen to avoid developing a marijuana superiority complex,” Collins says. “When you look at our mass incarceration problem, it is not entirely because of marijuana. In general, drugs should not be treated as a criminal issue. Someone who is possessing cocaine or heroin should not serve prison time for that. If they need help they should get help. They will not be helped through criminalization — we know that.”