Apologies, Delays, and the DEA: Understanding Biden’s Weed Actions

“This is a really big change of pace for him [on cannabis policy]said David Holland, an attorney at Prince Lobel Tye in New York who has worked on pardons for federal marijuana inmates and a petition to move cannabis into a less restrictive category. But “this is so small in the world of cannabis restorative justice.”

Here’s a Look at What Biden’s Executives Are Doing—and Not Doing — and what it could mean for America’s burgeoning multi-billion dollar marijuana markets.

The Evolution of Biden’s Drug Policy

Biden long cast himself as a drug fighter during his time in the Senate. In 1989, he criticized George HW Bush’s anti-drug plan as “not harsh enough.”

He then played a major role in the 1994 crime law that dramatically increased incarceration rates for drug offenses in America. It included sentencing provisions such as the three-strikes rule that state governments have also passed, which had a major impact on drug incarceration rates, including for marijuana offenses.

That history followed Biden in his campaign for president, which Democratic primary opponents clung to as an indication that he was out of step with the American public.

During the campaign, Biden said he was in favor of moving marijuana from Schedule I to Schedule II in the Controlled Substances Act. But he also said he supported decriminalizing marijuana use, which argues for confusion about it — as cocaine is a Schedule II substance and still highly criminalized.

The Biden administration also outraged cannabis advocates last year when the Daily Beast reported that “dozens” of young White House staffers had been suspended, asked to resign or placed on a remote work program after admitting to marijuana previously. to have used.

Who will be pardoned?

While presidents have the power to grant pardons and pardons through the U.S. Constitution, the type of general pardon Biden uses is not very common.

President Gerald Ford granted a general amnesty to Vietnam War deserters in 1974. And in 1977, President Jimmy Carter granted an unconditional pardon to hundreds of thousands of conscription evaders in the Vietnam War.

Biden’s action is limited to those with federal convictions for simple marijuana possession, which a senior government official is estimated to affect about 6,500 people.

But the vast majority of people negatively impacted by federal marijuana enforcement are those convicted of more serious crimes, such as human trafficking and distribution. While Biden has said no one should be incarcerated for using marijuana, there are currently few — if any — only incarcerated on a federal charge of marijuana possession.

The vast majority of people incarcerated for marijuana possession were convicted at the state level. Biden’s order also calls on governors to pardon state crimes involving marijuana, but the president has no authority to compel them into action. Many states that have legalized marijuana have already taken steps to remove old convictions for marijuana offenses. Illinois Gov. JB Pritzkerfor example issued pardons for more than 11,000 marijuana-related convictions end of 2019.

What impact would Biden’s action have on those who receive a pardon?

People with a criminal record also often face discrimination when it comes to access to housing, jobs or educational opportunities. “This grace will help alleviate those side effects,” the senior government official said.

But proponents wonder if that’s true.

“A grace still leaves all [criminal] records intact,” said Craig Cesal, who spent 19 years in federal prison for marijuana-related crimes and now pleads for other people with cannabis convictions. He was pardoned last year.

Their track record can still hurt employment, Cesal explained, such as being allowed to transport hazardous materials under a commercial driver’s license.

Biden has led Attorney General Merrick Garland develop an administrative process to issue pardons to those who qualify, according to the senior official.

But that’s not exactly an easy lift. There is no central database of federal marijuana offenders. State and local prosecutors have also encountered problems with the automatic erasure of cannabis-related criminal records.

Can Biden Unilaterally Ease Federal Restrictions On Marijuana?

No. Biden has instructed the Attorney General and Secretary of Health and Human Services Xavier Becerra to begin the process to review marijuana’s status under federal law.

There are two other ways the federal government can decriminalize marijuana. Congress could pass a law to do this, as it created the Controlled Substances Act, which classifies marijuana as Schedule I, defined as having no medical use and a high potential for abuse. Heroin and LSD are also Schedule I drugs. In addition, a citizen can file a request with the Drug Enforcement Administration to review marijuana planning.

While Biden can ask the attorney general to initiate the review, his authority to dictate the details is severely limited. Now the Food and Drug Administration and DEA will decide how to proceed.

What is the realignment or disruption process?

When the agency heads initiate the review process, the task is delegated to the DEA and FDA.

The FDA’s role is to conduct scientific and medical analysis and make a recommendation on planning to the DEA. The agency’s determination depends on three factors: currently accepted medical use, the potential for abuse and the addictive tendencies of a drug, explains Shane Pennington, an attorney at Vicente Sederberg who has been suing the DEA classification of marijuana for several years. .

While alcohol and tobacco certainly have abuse potential, those drugs have legal exemptions from the CSA.

“On science and medical issues, the FDA trumps the DEA,” Pennington said.

But the DEA has the discretion to override the FDA’s recommendation in certain situations, including whether it believes a planning decision could violate international drug conventions.

What happens now?

If the DEA and FDA decide that there is enough scientific evidence to justify a change in marijuana’s federal status, legalization proponents worry the drug could be moved to Schedule II or Schedule III, rather than completely off. the CSA to be removed.

That could jeopardize existing state-regulated marijuana markets, as it would place marijuana under the purview of FDA drug regulations. Existing Schedule II drugs include cocaine, fentanyl, and methamphetamine, while Schedule III drugs include ketamine and anabolic steroids.

“Biden is trying to pinpoint what the next two years will be a paradigm shift and a policy shift in the White House,” Holland said.

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