On Thursday, President Biden announced that he will be pardoning all past offenses of simple possession of marijuana by citizens and legal residents in violation of the Controlled Substances Act. He stated that these offenses have affected “thousands” of people (the Sentencing Commission’s latest data is from 2008-2013 and it is in the low thousands).
Most cannabis possession cases are prosecuted under state law, so in his announcement, President Biden also encouraged state governors to follow his lead with regard to state offenses (which leaves less than half of the states that have not already decriminalized cannabis in one form or another).
He also called on the Attorney General and the Secretary of Health and Human Services to begin the process “to review expeditiously” how marijuana is scheduled under federal law (as it is currently schedule I, with heroin, LSD, ecstasy and peyote, as drugs that have no currently accepted medical use and a high potential for abuse, and higher than schedule II drugs like fentanyl, cocaine and methamphetamine, that have a high potential for abuse and severe psychological or physical dependence that may, however, be prescribed by a doctor for certain medical conditions). Lastly, he states his intention to keep some of the federal enforcement priorities limiting trafficking, marketing and under-age sales (see 2013 DOJ priorities, later officially withdrawn by the 2018 DOJ Memo, but mostly still followed).
While any movement in federal cannabis policy should be celebrated, is this more than a midterm election talking point? What are the possible outcomes?
As I’ve written about before, the federal illegality of cannabis is a difficult bell to unring. And while cannabis legalization is a bipartisan issue and is broadly supported by the public, it is not an easy thing to undo a century of prohibition. We had only thirteen years of alcohol Prohibition, and it was a bipartisan effort, with a constitutional amendment, federal legal action, and fifty-state and local community legislation over the better part of twenty years to pass today's alcohol regulatory scheme, which has continued to evolve throughout the modern era.
Cannabis legalization in the states is not even a decade old (Colorado and Washington’s recreational marijuana stores opened for business in 2014), and it has only been done through laboratories of democracies at the state and local level, with shifting federal agendas, complexities and ideas for the federal regulatory scheme, some of which could undo or severely frustrate state programs. Many, many different federal cannabis bills have been proposed by congressional members from both sides of the aisle over the years, but none have been able to pass both houses.
And while the current Congress may not be able to find common ground for legalization, the DEA could do its own rescheduling, as the President is perhaps signaling, but would have to undertake a lengthy review process of scientific and medical evidence to do so, much of which may not be available given the limited research still available. Even if the DEA “reviews expeditiously” and reschedules cannabis to schedule II or III, this would disrupt the state adult use systems significantly because prescriptions would be required. A Congressional solution may be more appropriate, to create the regulatory framework and taxation system required to support things like labeling and formula approvals and licensing, like we have in the regulation of alcohol, and possibly support the more ambitious social equity goals that the Democrats are advocating.
What this means is that while Biden’s announcement is a step in the right direction, we’re still unlikely to see legalization anytime soon, unless this becomes a much bigger priority for Congress and the President. That seems unlikely in a midterm election year with the Democrats controlling the Senate by a single seat, with inflation on the rise, wars and unrest globally, and never-ending climate disasters. Until the political winds shift, we can be thankful for the states brave enough to take on cannabis legalization (especially those starting to work through interstate commerce issues like Oregon and California, in the absence of federal legalization), the businesses willing to dive into the fray, the advocates pushing for equity in the industry, and of course, the attorneys helping navigate the regulation soup, and hope they all keep working to create models for the federal government to build on when the opportunity eventually arises.
This blog is dedicated to occasional (and hopefully interesting) reports of state and national alcoholic beverage regulatory developments that we encounter in our practice. Booze Rules (and any comments below) are intended for informational use only and are not to be construed as legal advice. If you need legal advice please consult with your counsel.