What Rescheduling Pot Would Mean For Criminal Justice Reform

By Sam Reisman | February 15, 2024, 7:09 PM EST ·

While federal drug enforcers mull a recommendation from health regulators to loosen restrictions on marijuana, criminal justice reformers are warning that rescheduling the drug would not realize President Joe Biden's campaign promise to decriminalize marijuana.

The Joe Biden administration took a historic step in August when the Department of Health and Human Services recommended moving cannabis to Schedule III under the federal Controlled Substances Act, after concluding that marijuana had a currently accepted medical use and was less dangerous than other drugs in the highly restrictive Schedule I tier.

"It's significant to see the Biden Administration acknowledge what we have all known for years: that marijuana has a low likelihood for abuse and valid medical uses," Cat Packer, director of drug markets and legal regulation at the reformist Drug Policy Alliance, said in a recent statement.

"But rescheduling marijuana, without additional reforms, would leave most individuals and communities behind and subject to continued criminalization, harms, and disparities," Packer said.

The HHS's findings that marijuana has a "currently accepted medical use" and can be safe to use under medical supervision are significant because, as a Schedule I drug, marijuana has been considered so dangerous that it cannot be used at all, even under medical supervision. Moving cannabis to Schedule III would place it in the same tier as medications like anabolic steroids, ketamine and Tylenol with codeine.

The HHS's findings are binding with respect to the scientific and medical findings, but the department's rescheduling suggestion is now being considered by the U.S. Department of Justice's Drug Enforcement Administration. Reformers say, regardless of whether drug enforcers agree with HHS' conclusions, a Schedule III redesignation would fall short of Biden's campaign promise to fully decriminalize marijuana.

"When he was last campaigning for the presidency, he put out this messaging that he believes no one should be in jail for cannabis," Sarah Gersten, executive director and general counsel at the nonprofit Last Prisoner Project, which advocates for criminal justice reform of cannabis policy, told Law360. "Unfortunately I don't think he's kept that promise in office."

The admonishments come amid a broader evaluation of precisely how much power the federal executive has with respect to reforming cannabis' criminality, which has historically been enforced mainly at the state and local level, and differing opinions about what a Schedule III reassignment for cannabis would mean for federal marijuana enforcement.

Some upshots of a move to Schedule III are obvious. The punitive federal tax policy known as Section 280E, which bars sellers of Schedule I and II substances from taking ordinary business deductions, would be removed, providing a widely anticipated windfall to the flagging economic fortunes of the cannabis sector.

"Everyone who works in this space has plenty of clients who are simply unable to pay their tax burden, and are rolling over payment plan after payment plan in the hopes that 280E [relief] is coming," R. Lance Boldrey, leader of the cannabis group at Dykema Gossett PLLC, told Law360. "It could be a real lifeline."

Other consequences of a potential Schedule III scenario are too hazy to discern and widely in dispute. One enigma that has rankled and divided stakeholders is whether and to what extent the U.S. Food and Drug Administration would begin to assert regulatory authority over state-regulated medical marijuana programs. Another topic of debate is whether the U.S. could continue to meet its international treaty obligations if the DOJ moved cannabis to Schedule III.

But on the topic of criminal justice reform, a recent Congressional Research Service report was frank in its determination that a move to Schedule III would not materially change the criminality of marijuana crimes.

"With respect to the manufacture, distribution, and possession of recreational marijuana, if marijuana were moved to Schedule III, such activities would remain illegal under federal law and potentially subject to federal prosecution regardless of their status under state law," the report said.

The same report noted that while some criminal penalties for CSA violations are tied to the schedule of the drug in question, all penalties for marijuana-related activities, such as mandatory sentence minimums, are pegged to the quantity of the marijuana at issue in the crime and would not change as a result of rescheduling.

For criminal justice reform advocates, the issue marks another example of how federal cannabis reform lobbying has been steered to benefit the industry, and not the thousands of Americans charged and convicted under marijuana prohibition.

Regarding rescheduling, a recent memo published by the Last Prisoner Project said: "While the action could result in some favorable tax and banking reform for the cannabis industry and more dedicated research for cannabis patients, there are no changes in how the criminal legal system punishes cannabis users."

"Rescheduling is a peripheral change that signals the reevaluation of cannabis but not the release of cannabis prisoners or relief for those who continue to be burdened by the lasting consequences of the carceral system," the memo continued.

The limits of rescheduling have come into renewed focus as Joe Biden, who campaigned in 2020 with a promise to decriminalize marijuana, mounts another run for the White House. Biden has kept the issue afloat in his reelection campaign, even as reformers say he's oversold his administration's efforts.

At a campaign event in South Carolina on Jan. 27, the president said, "I keep my promises when I said no one — no one should be in prison for merely possessing marijuana or using it, and their records should be expunged. A promise made and a promise kept."

Last Prisoner Project's Gersten countered that the presidential pardons, for federal crimes of simple marijuana use and possession, which Biden granted in October 2022 and December 2023 were "largely symbolic," because they did not result in anyone being released from custody.

Biden's cannabis pardons only extended to individuals whose offenses took place in the District of Columbia and other lands under the jurisdiction of federal law. However, the vast majority of arrests and convictions for simple possession and use of marijuana have taken place at the local and state level.

As of January 2022, there were no prisoners in federal custody sentenced solely for simple marijuana possession, according to a recent report from the U.S. Sentencing Commission. The same report found that the number of federal offenders sentenced for simple marijuana possession is relatively low and has been declining for the past decade, from 2,172 in fiscal year 2014 to 145 in fiscal year 2021.

In an acknowledgment of the limits of federal executive power, President Biden in both 2022 and 2023 urged state governors to follow his lead. After the initial batch of pardons, some Democratic governors, in Connecticut and Oregon, did so. Others rejected the call, such as Asa Hutchinson, the Republican then-governor of Arkansas, who at the time accused Biden of having "adopted all the talking points of the drug legalizers."

Legal experts had anticipated the shortfall between candidate Biden's pledge and President Biden's actions. Robert Mikos, a professor at Vanderbilt Law School who has studied the intersection of federalism and drug policy, warned in a 2021 paper: "Proponents of reform need to recognize that Congress made this mess, and only Congress can clean it up."

The paper, entitled "POTUS and Pot: Why the President Could Not Legalize Marijuana Through Executive Action," continued: "Proponents of reform should resist the temptation to embrace the imperial presidency to serve their short-term policy goals, for there is much more at stake here than marijuana policy."

For the thousands in prison for cannabis crimes, marijuana rescheduling or even descheduling — that is, removing cannabis from the ambit of the CSA entirely — would accomplish little on its own, advocates say.

"There would be no upside to anyone who has experienced incarceration or having a cannabis conviction on their records," Gersten said. "Neither rescheduling nor descheduling would have an impact on those individuals who have been previously harmed by cannabis' status as a controlled substance. We're going to need to take additional action and [seek] retroactive relief."

In a recent memo, Last Prisoner Project outlined the steps that could still be taken at the federal level to achieve tangible criminal justice reforms nationwide, saying that the current review of marijuana's Schedule I status presented a rare moment to enact meaningful change.

Among the reforms recommended by the group, the memo advised that the president could back federal legislation to expunge cannabis convictions, rather than merely issue pardons, and to commute prison sentences for those serving time for cannabis crimes.

The group also recommended that the administration could direct the U.S. Department of Justice to formally deprioritize marijuana enforcement, similar to the action taken under the Obama Administration in 2013, enshrined as the "Cole Memo," in the early days of state-level recreational marijuana legalization.

That guidance was officially rescinded by President Trump's first attorney general, Jeff Sessions, in January 2018. But the move did not precipitate an uptick in federal cannabis prosecutions, as some in the industry feared, and the DOJ's general position of de facto non-enforcement of cannabis laws against state-legal entities has stayed in place.

But advocates hope that the potential recognition from regulators that cannabis is no longer among the most dangerous drugs could provide a window for prosecutors and sentencing judges to demonstrate more clemency.

Gersten told Law360: "We now have the opportunity to say that, because we're potentially seeing this change in classification of cannabis at the federal level, people serving cannabis sentences should be afforded compassionate release."

Gersten continued, "It's so dependent on the prosecutor. The Biden administration could do a lot to go to U.S. Attorneys and say, 'Don't oppose these motions'" for compassionate release.

While the marijuana sector is, naturally, in favor of decriminalizing the drug in an ideal scenario, in terms of bringing its lobbying muscle to bear in Washington, most efforts have lately focused on arguing for a Schedule III reclassification and backing narrowly tailored federal legislation that would open up the industry to traditional sources of finance. For some advocates in the space, there is room for more synergy.

"I think that this movement is still having trouble working together and rowing in the same direction, and I actually do think we need to listen to the social justice folks a little more," according to Matthew Zorn, a partner at Yetter Coleman LLP who has litigated numerous high-profile drug law cases. "Both sides need to give a little on this."

Zorn said that the moneyed push for industry-favored incremental reforms, such as the long-pending SAFE Banking Act in all its iterations, can obscure the stories of those directly affected by decades of marijuana prohibition.

"Representatives care about fairness," Zorn said. "SAFE Banking, I think, is a bill that has a hard time explaining why it does anything other than facilitate capital markets transactions for cannabis companies, and it's not an overly compelling narrative."

Zorn added, "Wouldn't it be advantageous for the cannabis legalization movement to embrace these social justice narratives?"

--Editing by Emily Kokoll.

Correction: A previous version of this story misspelled Sarah Gersten's name. The error has been corrected.

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