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How Will Federal Marijuana Reclassification Impact Criminal Justice, And Politics?

Last August, the U.S. Department of Health And Human Services sent a recommendation to federal drug enforcers that marijuana be rescheduled 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 that includes heroin and cocaine.

It appears likely that the U.S. Department of Justice Drug Enforcement Administration will follow that recommendation. But some worry that the decision will not address many of the harms that marijuana criminalization has had around the country, Law360 reports.

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

Moving marijuana to Schedule III would place it in the same tier as medications like anabolic steroids, ketamine and Tylenol with codeine, and would allow marijuana businesses to be eligible for federal tax deductions. It’s unclear whether or not federal regulators would have authority over state-regulated medical marijuana programs.

It  would not, however, make recreational use of marijuana legal under federal law. 

"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," a recent Congressional Research Service report found. 

For advocates, the move to reschedule the drug rather than legalize it is 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.

"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."

Meanwhile, the move to reschedule marijuana could benefit President Joe Biden in the upcoming presidential election, Daniel McGraw writes in The Bulwark. 

Two polls show that both rescheduling marijuana and legalization are supported by a majority of voters in the country —  and, notably, supported by a majority of independent voters. 

“The important thing borne out in these findings is that Trump could get boxed into a corner on this issue,” McGraw writes, noting that Trump’s base is “primarily made up of older and more conservative Christian voters, who are largely opposed to any form of legalization or change in marijuana laws,” while the voters he needs to attract are younger voters and minorities. 

“Biden can go after this demographic without pissing off his base in any way, and Trump cannot,” he writes.


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A daily report co-sponsored by Arizona State University, Criminal Justice Journalists, and the National Criminal Justice Association

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