Thirty-five years ago this Wednesday, the chief administrative law judge for the Drug Enforcement Administration (DEA) itself declared marijuana to be “one of the safest therapeutically active substances known to man,” recommending rescheduling and criticizing the agency for impeding patient access.
Now, with the U.S. Department of Health and Human Services (HHS) newly advising DEA to move cannabis from Schedule I to Schedule III of the Controlled Substance Act (CSA) follow a scientific review it carried out under a directive from President Joe Biden, the anniversary is taking on renewed meaning.
DEA Administration Law Judge Francis Young made history on September 6, 1988 when he issued the ruling titled, “In the Matter of Marijuana Rescheduling.” The case was the culmination of years of activist-led efforts to get DEA to carry out a cannabis review, which the agency resisted even after being compelled by a federal appeals court.
DEA finally held public hearings on the issue in 1986—14 years after NORML and other advocates filed their scheduling petition. And after two years, Young released a ruling that sharply criticized DEA for keeping marijuana in Schedule I.
“Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care,” it said. “It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.”
“The administrative law judge recommends that the Administrator conclude that the marijuana plant considered as a whole has a currently accepted medical use in treatment in the United States, that there is no lack of accepted safety for use of it under medical supervision and that it may lawfully be transferred from Schedule I to Schedule II” of the CSA, Young wrote.
But despite the agency’s own law judge reaching that conclusion, then-DEA Administrator John Lawn rejected it, and cannabis has remained in Schedule I ever since. But things could finally change soon, with HHS now recommending a Schedule III designation and DEA confirming that it is now carrying its portion of the review before making a final scheduling decision.
“Judge Young’s ruling was a tremendous victory for medical cannabis reformers but what followed that ruling needs to be a lesson to us all. Especially now,” said Alice O’Leary Randall, the widow of a glaucoma patient named Robert Randall who made history 45 years ago after becoming the first person in the U.S. under prohibition to secure a legal supply of cannabis that was grown, processed and delivered by the federal government itself.
Alice Randall is now working to preserve her husband’s legacy, as well as those of other pioneering activists who fought for the end of the drug war before public opinion had soured against prohibition. In a blog post about the anniversary of the DEA judge’s scheduling ruling, she said that “we learned the DEA administrator has the ultimate power with respect to scheduling drugs.”
“The administrator can solicit opinions but doesn’t have to listen to them. The administrator can overrule decisions from virtually everyone, scientists and healthcare providers included. In terms of regulations, the DEA administrator has the final say,” she said. “So, can or will DEA reject the recommendation from DHHS this time? This is the first time the health agency has aggressively forwarded a recommendation of rescheduling, so this is new territory.”
HHS’s scientific findings are binding on DEA, but the law enforcement agency can still choose to depart from its scheduling recommendation. That said, the politics of the issue have shifted demonstrably since the last time DEA seriously considered cannabis rescheduling, and advocates are hopeful that the combination of the health agency’s scientific research and political pressure under the Biden administration will be enough to affect meaningful change.
“This milestone reflects the reality that advocates have been engaged in a multi-decade long struggle to compel the federal government to acknowledge the obvious: that cannabis possesses therapeutic benefits,” NORML Deputy Director Paul Armentano told Marijuana Moment on Tuesday. “It also highlights the fact that the federal government’s ongoing refusal to do so has been strictly a political decision.”
“After all, it was clear to the DEA’s own Administrative Law Judge some 35 years ago that cannabis didn’t just meet the requisite standards of safety and efficacy, but that in fact, ‘Marijuana, in its natural form, is one of the safest therapeutically active substances known to man,’” he said in a blog post. “Let’s be clear. Judge Young didn’t call for ‘more research.’ Judge Young didn’t say the evidence was equivocal. Judge Young was convinced that the science and evidence available at that time made the case for cannabis to be legally available to patients nationwide. The evidence in support of that position has only grown exponentially stronger, and quite frankly undeniable, over the past three and one-half decades.”
Justin Strekal, founder of the BOWL PAC, told Marijuana Moment that “the DEA knew back then what we still know today: that the government has been lying about the effects of marijuana.”
“Now is the time for the Biden Administration to administratively end the criminalization of cannabis and those who consume it,” he said.
(Disclosure: Strekal supports Marijuana Moment’s work with a monthly pledge on Patreon.)
Biden hasn’t personally commented on HHS’s rescheduling recommendation, but the White House press secretary did say last week that the president has been “very clear” that he’s “always supported the legalization of marijuana for medical purposes.”
Of course, it’s not accurate to say that Biden has “always” backed cannabis reform. As a senator he championed several pieces of legislation that ramped up the war on drugs.
In any case, if DEA goes along with HHS’s Schedule III recommendation, that would represent a major shift in federal marijuana policy, with an acknowledgement that cannabis is not a drug of high abuse potential and no medical utility. But it would not sanction current state-level medical cannabis programs. It would, however, free up research into the plant and have significant implications for the marijuana industry.
Congressional lawmakers across party lines have applauded the top health agency’s recommendation, though some have described it as an important “step” on the path to federal legalization. Others have claimed credit for the move, pointing to their years of advocacy around marijuana reform.
Politically, moving marijuana from Schedule I to Schedule III would allow the president to say that he’s helped accomplish a major reform, facilitating an administrative review that may result in rescheduling more than 50 years after cannabis was placed in the most restrictive category as the federal government launched a war on drugs. That said, it would not represent fulfillment of his campaign pledge to decriminalize marijuana.
The incremental reform, meanwhile, could also bolster momentum for congressional efforts to further change federal cannabis laws, like a marijuana banking reform bill that Senate Majority Leader Chuck Schumer (D-NY) has described as a priority for the fall session.
Photo courtesy of Chris Wallis // Side Pocket Images.