Marijuana Rescheduling Won’t Fulfill Biden’s Campaign Pledge To Decriminalize (Op-Ed)

“Let’s show the Biden administration and federal leaders that Americans demand more than just rescheduling.”

By Cat Packer, Drug Policy Alliance on behalf of United for Marijuana Decriminalization

Marijuana should have never been criminalized back in the 1970s. Even President Richard Nixon’s own commission recommended decriminalizing marijuana use. But Nixon wanted to criminalize and disrupt antiwar protestors and Black communities, so marijuana was placed on the Controlled Substances Act (CSA) in Schedule I. Ever since, individuals and communities all across America have been suffering the consequences of marijuana prohibition.

Now, over 50 years later, there’s an unprecedented opportunity for folks to weigh in on federal marijuana policy and demand an end to cannabis criminalization on the record. Last month, the Biden administration’s Department of Justice (DOJ) published its proposed rule to reclassify marijuana from Schedule I to Schedule III under the CSA. This initiated a crucial but time-sensitive public comment period for members of the public to provide feedback on their proposed rule.

The problem is that rescheduling marijuana as a Schedule III drug under the CSA, while not entirely insignificant, would continue federal marijuana criminalization—not end it. In order to address the racist legacy of Nixon’s criminalization of marijuana and war on drugs, marijuana must be decriminalized, meaning it must be removed from the schedules of the CSA, or descheduled.

With the public comment period ending on July 22, there’s now less than 30 days for folks to add their public comment to shape the future of federal marijuana reform.

Over the last year, United for Marijuana Decriminalization (UMD), a coalition of cannabis policy and industry advocates, have been working together to educate members of the public and policymakers on the limitations of rescheduling marijuana—namely how it falls woefully short of the decriminalization promised by President Biden. Rescheduling does nothing to even acknowledge, let alone end and address, the harms of criminalization or its disproportionate impacts on Black and Brown communities.

In response to the proposed rule, United for Marijuana Decriminalization launched a simple tool that individuals can use to easily submit a comment in support of federal marijuana decriminalization.

Together, we’re calling on President Biden and his administration to take action to fulfill his cannabis promises, calling out the limitations of rescheduling and calling on the public to make their voices heard in support of decriminalization.

President Biden’s Cannabis Promises Remain Unfulfilled

During his 2020 presidential campaign, President Biden pledged to decriminalize marijuana use and expunge related criminal records. In 2022, when calling for the scheduling review, Biden acknowledged that criminalization has “failed,” and that it disproportionately impacted Black and Brown communities.He also committed to right criminalization’s wrongs. He now regularly repeats that “no one should be in jail for marijuana use,” even mentioning it in his 2024 State of the Union Address.

Brian “Box” Brown

Despite President Biden’s rhetoric, his cannabis related promises, at present, remain unfulfilled. If his administration moves marijuana to Schedule III, despite its touted significance, people could still be jailed for marijuana use and possession under federal law. And related harms and racial disparities would be likely to continue. Rescheduling isn’t the decriminalization of marijuana that Biden promised—it would in fact continue federal criminalization.

Similarly, Biden’s promises to automatically expunge marijuana records haven’t materialized. This is not entirely his fault, as Congress must act to pass related laws, and he has taken important actions to issue pardons for simple marijuana possession in October 2022 and again in December 2023.

But these pardons excluded many people, including some immigrants and people with higher-level cannabis convictions beyond simple possession and use. Despite the existence of a growing, billion-dollar cannabis industry in the U.S. that the federal government continues to acknowledge and collect taxes from, Americans across the country continue to feel the consequences of marijuana prohibition.

If President Biden is serious about taking meaningful action on marijuana reform and keeping his promises on decriminalization and expungements, he should use his executive authority to direct federal agencies to formally acknowledge and mitigate criminalization’s harms.

He should also tell Congress to pass comprehensive legislation that deschedules marijuana and includes automatic expungement, such as the Marijuana Opportunity Reinvestment and Expungement (MORE) Act in the House and the Cannabis Administration and Opportunity Act (CAOA) in the Senate.

Why Schedule III Isn’t Enough

A shift to Schedule III would mean that the federal government is classifying marijuana as a drug with a “currently accepted medical use” and a lower risk for abuse and dependence. However, rescheduling would also maintain federal criminalization for all cannabis related activity authorized under state law—including in the 38 states with medical marijuana laws and in the 24 states that have passed recreational adult-use marijuana laws.

Rescheduling would change research restrictions and provide meaningful tax parity to the marijuana industry, but the manufacturing, distribution, dispensing and possession of marijuana would remain federally illegal. Even those who stand to benefit from rescheduling can and should acknowledge that marijuana must be descheduled, not rescheduled, to end criminalization.

Moving marijuana to Schedule III wouldn’t extend legal protection to cannabis patients, adult consumers, state medical marijuana programs, state adult use marijuana programs, the cannabis businesses that participate in those programs or the employees that work for those cannabis businesses. Schedule III would not provide access to banking services and loans for those in the cannabis industry.

Moreover, rescheduling marijuana would do nothing to acknowledge the racist origins of federal marijuana policy or to address its disparate impacts. And it wouldn’t release anyone who is currently in jail for marijuana offenses, address past arrests and their collateral consequences or prevent future arrests.

The Power of Public Comment

Over 70 percent of adults support legalizing marijuana, according to a recent Gallup Poll. And the public comments submitted thus far in response to the DOJ’s proposed rule to move marijuana to Schedule III similarly demonstrate broad support for decriminalizing marijuana.

68 percent of the comments submitted within the first 30 days include support for decriminalization, descheduling or legalization. Moreover, nearly a third of the comments submitted underscore the need for federal marijuana policy to address past harms and racial disparities.

We all deserve marijuana laws that protect people, families and communities and are grounded in racial equity, public health and community reinvestment. To achieve this, it is vital that the public take this unprecedented opportunity to be on the record in support of federal marijuana decriminalization.

Even if marijuana is ultimately rescheduled, as many expect it to be, by flooding the public comment period with calls for more substantial reform, we can prove to federal leaders that this issue is important to a broad spectrum of Americans. Now is our chance to tell the federal government that it’s time for federal cannabis policies that finally align with the will of the American people.

How You Can Take Action Now To Support Federal Marijuana Decriminalization

1. Submit a Public Comment: Utilize United for Marijuana Decriminalization’s tool or utilize the Federal eRulemaking Portal, to submit your comment on the proposed rule. Share your personal experiences and the broader impacts of marijuana criminalization.
2. Highlight the Need for Decriminalization: Rescheduling is not enough as it does not solve the problem of federal cannabis criminalization. Advocate for the decriminalization of marijuana and the expungement of past criminal records.
3. Spread the Word: Encourage your friends, family and community members to participate in the public comment process. The more voices we have, the stronger our message will be.
4. Support Impacted Communities: Recognize and amplify the voices of those most affected by federal cannabis laws. Their experiences and perspectives are essential in shaping fair and just policies.

Marijuana should have never been federally criminalized. It shouldn’t be controversial now to acknowledge that moving marijuana to Schedule III—which would continue criminalization—is not enough.

That’s why the communities most impacted by these laws are leveraging this moment to show that we are united for comprehensive reform. Moreover, by participating in the public comment process, everyday people can demonstrate to federal leaders that this is an issue we are all impacted by, care about deeply and demand action.

Despite the limitations of rescheduling marijuana, the Biden administration and Congress both have an opportunity and responsibility to take further actions on federal reform to end criminalization and its harms now.

Your voice matters—but don’t delay, the clock is ticking. It takes less than a minute to submit a public comment in support of federal marijuana decriminalization. Let’s show the Biden administration and federal leaders that Americans demand more than just rescheduling.

Cat Packer is the director of drug markets and legal regulation at the Drug Policy Alliance, vice chair of the Cannabis Regulators of Color Coalition and a distinguished cannabis policy practitioner in residence at The Ohio State University Moritz College of Law’s Drug Enforcement and Policy Center. From 2017 to 2022, Cat served as the first executive director of the City of Los Angeles Department of Cannabis Regulation.

Groups Push DEA To Hold Hearing On Biden Administration’s Marijuana Rescheduling Proposal

Photo courtesy of Mike Latimer.