Rescheduling Marijuana Is Not Enough, Most Public Comments Assert

    How do people feel about the Biden administration’s move to reschedule marijuana? Public comments to the Drug Enforcement Administration (DEA) indicate a majority believe the federal government should go much further—by descheduling, decriminalizing and/or legalizing cannabis. And a large proportion see this as not just about drugs, but about racial and social justice.

    In May, the the Department of Justice announced a proposed rule change, moving marijuana from Schedule I of the Controlled Substances Act (CSA)—the most severely restricted category—to Schedule III. As required by law, the Drug Enforcement Administration (DEA) is now accepting public comments on the proposal, until July 22.

    To better understand public sentiment, the Drug Policy Alliance (DPA) examined over 24,000 comments that were published as of June 24. It found that about 68 percent of them support descheduling, decriminalizing or legalizing marijuana. Additionally, about 38 percent of comments mentioned racial justice or social equity, mostly as grounds to support reform.

    “It’s especially significant that nearly a third of all public comments demonstrate support for federal marijuana policy that addresses past harms, racial disparities, and advances social justice,” Cat Packer, DPA’s director of drug markets and legal regulation, said in a press statement.

    “This demonstrates the urgency of not only putting an end to federal criminalization, but also taking steps to address the ways that marijuana criminalization ruins lives and disproportionately impacts Black and Latinx communities,” she continued. “That means expunging records, issuing broader pardons, ensuring legal markets are both responsible and equitable, and reinvesting marijuana tax revenues back into the people and communities that have borne the brunt of over-policing and racially discriminatory enforcement.”

    DPA pointed out that moving cannabis to Schedule III does not expunge any marijuana records, release anyone from prison or reduce sentences. It does not end federal marijuana charges, including for possession.

    During his 2020 campaign, President Joe Biden did not support full legalization. But he did call not only for rescheduling cannabis, but for decriminalization, legalizing medical cannabis and expunging criminal records.

    Advocates are acutely aware of how far his actions have fallen short of his promises. And they’ve been calling on the president to take more action in what’s left of his term. In the press release, the group United for Marijuana Decriminalization urged the executive branch “to advance equity in federal marijuana policy and to mitigate the harms of criminalization by expanding pardons and commutations, protecting state marijuana programs, and directing federal agencies to cease punishing people for marijuana use.”

    With polls indicating that Biden is struggling with voters of color and youth as he seeks reelection, he opted for rescheduling late in his term. But while the move is historic, it accomplishes very little of what he promised.

    “It’s something that energizes young and progressive voters, voters of color, so it’s nonsensical that the admin isn’t going so far as to fully legalize cannabis.”

    Sarah Gersten, executive director of the Last Prisoner Project, which calls for legalization and cannabis justice, suggested that Biden is being cautious because he believes he cannot do much without an act of Congress.

    “I think unfortunately the administration feels they don’t have the full authority to move cannabis off the CSA,” she told Filter. “That’s a political question. But President Biden, despite making this part of his original 2020 campaign … is still the architect of some of our most punitive drug laws and doesn’t have a great history on the issue of drug policy. I don’t think it’s surprising his administration has been reluctant to … fully deschedule.”

    Use of Biden’s executive authority would likely spark a backlash from Republicans, but it’s the only real possibility for further federal reform before the election. There are two bills in Congress that would decriminalize and legalize marijuana. In the House, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act has passed twice—though since Republicans took control of the House in 2022, there’s little hope that current House Speaker Mike Johnson (R-LA) will bring it to the floor again. In the Senate, Majority Leader Chuck Schumer (D-NY) introduced the Cannabis Administration and Opportunity Act (CAOA), but with a tiny Democratic majority, Republicans have been able to stop it coming to the floor.

    With the path through Congress blocked, Gersten thinks that inertia from the executive branch would be a political mistake. “I hope this [DPA] analysis [shows the administration] that this is possible, and it’s good for their electorate,” she said. “It’s something that energizes young and progressive voters, voters of color, so it’s nonsensical that the admin isn’t going so far as to fully legalize cannabis.”

    During Biden’s time in office, many additional states have legalized, bringing the current total to 24 states and Washington, DC. Most recently in Ohio, marijuana legalization on the ballot, combined with a high-stakes abortion referendum, seemed to motivate many of the progressive-leaning, urban voters that a Biden 2024 win would depend on.

    Yet despite rapidly spreading state-level legalization, marijuana arrests remain extremely common in the United States. The latest FBI crime statistics showed that in 2022, police made over 227,000 marijuana arrests nationwide—overwhelmingly for possession only. That was an increase from the year prior, and is likely an undercount because of the unreliability of police departments sharing data with the feds.

    “Beyond the federal moves, we need states to be prioritizing this and taking action, because that’s where the vast majority of arrests take place.”

    “This is perhaps the most important misconception to clear up,” Gersten said. “I think people assume that now we have a majority of states that have legalized, we’re no longer arresting people for possession or cannabis offenses, and that’s not true. We’re still arresting a quarter of a million people for cannabis every year … Beyond the federal moves to reclassify cannabis, we need states to be prioritizing this and taking action, because that’s where the vast majority of arrests take place.”

    An unwelcome reality for cannabis legalization advocates is that even in states that have legalized, arrests and racist disparities in police enforcement have not ended. California, the nation’s largest cannabis market, has been one example.

    “Unsurprisingly, states with no form of legalization, not even medical, like Texas and Florida, continue to report arrests at a higher level than other states,” Adrian Rocha, policy manager for the Last Prisoner Project, told Filter.

    However, “It is worth noting that every legalization state still maintains penalties for cannabis, and those laws still reflect that baked-in discrimination of our criminal legal-system, even post-legalization. In Washington, DC, where adult-use cannabis has been legalized for nearly 10 years, Black people still account for almost 90 percent of marijuana arrests.”

    Gersten knows that the fight for justice doesn’t end with legalization.

    “Beyond just getting the laws passed, we have to do more to inform law enforcement,” she said. “When I was working in Massachusetts after the state legalized, there was a lot of work to educate law enforcement because there was still a stigma. Police officers and prosecutors have decades of experience believing marijuana is incredibly harmful, it’s a Schedule I drug. It takes more than passing a law to undo that framework that exists with our criminal-legal system.”


    Photograph by Kindel Media via Pexels

    The Influence Foundation, which operates Filter, previously received a restricted grant from DPA. Filter’s Editorial Independence Policy applies.


    • Alexander is Filter’s staff writer. He writes about the movement to end the War on Drugs. He grew up in New Jersey and swears it’s actually alright. He’s also a musician hoping to change the world through the power of ledger lines and legislation. Alexander was previously Filter‘s editorial fellow.

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