President-elect Joe Biden is reportedly set to nominate Judge Merrick Garland—who seems to feel that the Drug Enforcement Administration (DEA) should be deferred to when it comes to the science and classification of marijuana—to serve as the next U.S. attorney general.
But according to press reports, he’s also selecting two civil rights activists who embrace cannabis legalization to serve in other top posts at the Justice Department. Together, the picks could have far-reaching implications for marijuana policy.
Garland, who was previously nominated by President Obama to serve on the Supreme Court only to have his nomination blocked by Senate Republicans, hasn’t made his views on cannabis issues especially clear. But his judicial record indicates that he believes in deference to DEA when it comes to drug scheduling. And that could be a problem for efforts to reclassify cannabis given the agency’s strong opposition to such a move for decades.
The principal concern for reform advocates when it comes to Garland’s in a 2012 federal lawsuit case over DEA’s denial of a marijuana rescheduling petition. He was one of three judges on a U.S. Court of Appeals for the District of Columbia Circuit panel that upheld the denial, and his commentary during the oral arguments suggests he feels DEA is the appropriate agency to weigh cannabis science and set scheduling policy.
In the case, the court was responsible for examining whether DEA had meaningfully considered the therapeutic potential of cannabis before deciding it should remain in its restrictive category. The agency has repeatedly maintained that marijuana should be kept as a Schedule I drug because, it claims, the plant has no proven medical value and a high risk potential.
“Don’t we have to defer to the agency” when it comes to evaluations of research into marijuana’s therapeutic value? Garland asked the attorney representing reform group Americans for Safe Access. “Defer doesn’t mean they win, but defer in the sense of we’re not scientists—they are—to the definition of what is an adequate and well-controlled study.”
Listen to Garland discuss the marijuana case below:
Now, that’s not necessarily judgement on whether cannabis has medical value or the appropriateness of its legal classification under federal law. But it does offer a window into Garland’s perspective on deference to DEA at a time when its decision-making on cannabis is again being challenged in court.
In the majority opinion joined by Garland, the court said that “because the agency’s factual findings in this case are supported by substantial evidence and because those factual findings reasonably support the agency’s final decision not to reschedule marijuana, we must uphold the agency action.”
As attorney general, Garland would be in a position to unilaterally initiate a petition to reschedule cannabis. As head of the Justice Department, under which DEA is organized, he would also have considerable influence of the agency’s scheduling and enforcement policies when it comes to marijuana.
Advocates were hopeful that Biden would pick someone who might proactively push for the policy change—such as former Sen. Doug Jones (D-AL), who is on record as saying cannabis should be completely descheduled—but that appears to not have been the case.
It’s still possible that Biden—who himself supports modestly reclassifying marijuana to Schedule II—could be urged to have his administration push for broader reform by some other new administrative picks who are in favor of legalization however.
Former prosecutor and civil rights activist Vanita Gupta, meanwhile, is expected to be chosen to serve as associate attorney general. She favors cannabis legalization and has strongly condemned harsh criminalization policies for non-violent drug offenses.
Gupta currently serves as president of the Leadership Conference on Civil and Human Rights (LCCHR), a position in which she has voiced support for a House-passed bill to federally legalize marijuana and has railed against the injustices of the drug war. Gupta was part of a criminal justice task force organized by Biden and Sen. Bernie Sanders (I-VT) prior to the Democratic presidential nomination.
Very big deal. MORE Act passes out of @HouseJudiciary with bipartisan support.
— Vanita Gupta (@vanitaguptaCR) November 20, 2019
In March 2018, Gupta said that the Trump administration is “seeking a decidedly punitive approach to America’s drug problem—one that seeks to increase already disproportionate sentences for drug offenses & employ the death penalty.”
“We tried the punitive and overly simplistic approach of the War on Drugs approach 30 years ago, and it failed. That’s why we’re seeing, in states around the country, a bipartisan push to recognize that substance use requires a public health approach,” she said. “We must reject efforts to further politicize this crisis. We cannot just do what feels good, or sounds good. We must take an evidenced-based approach to ending the opioid crisis.”
More recently, Gupta has highlighted the dangers of excessive sentences doled out for crack-related offenses and said while Congress took steps to repair those harms, there are still people stuck in prison—and that’s especially concerning during the coronavirus pandemic.
Her organization has supported that bill and numerous other drug policy reform initiatives, including as part of a collective effort called the Marijuana Justice Coalition. LCCHR was one of more than 100 groups that released a criminal justice plan for the 2020 election calling for the legalization of marijuana and supporting the “dismantling” of the criminalization of other drugs. The group also called for a delay of a House vote on cannabis banking legislation because it said comprehensive reform with a social equity focus should be prioritized.
In April, LCCHR was one of several organizations urging Congress to extend access to federal coronavirus relief to the marijuana industry.
Another positive signal for advocates is Biden’s selection of Kristen Clarke, who is president of the Lawyers Committee for Civil Rights Under Law, to lead the Justice Department’s Civil Rights Division, a role in which Gupta served during the Obama administation.
Clarke also backs cannabis legalization.
BREAKING: The House just passed the #MOREAct which would END federal marijuana prohibition.
The Marijuana Opportunity, Reinvestment and Expungement Act would remove marijuana from the federal Controlled Substances Act and give states freedom to establish their own cannabis laws.
— Kristen Clarke (@KristenClarkeJD) December 4, 2020
Only 8% of Americans believe that marijuana should be completely illegal.
As more states take steps to legalize, we must address the damage inflicted on Black and brown communities who were disproportionately targeted during our failed War on Drugs. https://t.co/Dyxaq8jw7C
— Kristen Clarke (@KristenClarkeJD) November 16, 2019
Separately, Biden recently selected a nominee for secretary of health and human services (HHS)—California Attorney General Xavier Becerra (D)—who is amenable to reform. And in his role, he could help facilitate rescheduling. While the Justice Department plays a key role in marijuana’s federal scheduling, a medical and scientific review by HHS is binding on the attorney general’s subsequent classification decision.
Taken altogether, the Justice Department picks can be viewed as encouraging from an advocacy standpoint. Garland might not be a champion of reform, but he hasn’t taken a stance against legalization and has only defended statutory policies on scheduling.
He certainly can’t be compared to President Trump’s first attorney general, Jeff Sessions, who is firmly opposed to cannabis policy changes and rescinded Obama-era guidance that gave federal prosecutors priorities when it comes to marijuana enforcement.
And of course, regardless of the Justice Department’s position and actions, advocates are more closely following Congress and the executive branch going into 2021. A bill to federally legalize marijuana passed the House last month, and it’s expected to be taken up again in the new session.
The chances of that legislation—and other more modest cannabis reform bills—reaching Biden’s desk this year are significantly higher now that Democrats have reclaimed control of the Senate and maintain power in the House.
Photo courtesy of Philip Steffan.
Virginia Has Sealed 64,000 Marijuana Distribution Charges Since Legalization Took Effect This Summer
“These aren’t just numbers and there are families attached.”
By Ned Oliver, Virginia Mercury
Virginia has sealed records documenting more than 64,000 misdemeanor marijuana distribution charges since the state legalized the drug in July.
The figure came out Thursday during a meeting of the legislature’s Cannabis Oversight Commission.
Officials said the records were scrubbed from the state’s criminal record database, which is used by employers like school boards, state agencies and local governments to screen employees.
The state had already sealed 333,000 records detailing charges of simple possession last year after the state reduced the offense to a civil infraction on par with a traffic offense, said Shawn G. Talmadge, the Deputy Secretary of Public Safety and Homeland Security.
Lawmakers directed the state to expand that effort when they voted to broadly legalize recreational use of marijuana earlier this year.
The legislature also agreed to a broader expungement reform that will automatically seal other misdemeanor charges, including underage possession of alcohol, use of a fake ID, petit larceny, trespassing and disorderly conduct. Talmadge said those charges will remain in the system until the state finishes updating the software it uses to track criminal records.
“As of right now, the process is proceeding,” he said.
The Virginia Joint Commission on Cannabis Oversight is meeting now. You can find the agenda and links to livestream and to provide public comment at https://t.co/f1wsPn7SV7
— Jennifer McClellan (@JennMcClellanVA) October 14, 2021
Members of the oversight commission also heard from two advocates who urged them to move fast to address people currently imprisoned for marijuana offenses—a category of people the legalization legislation passed this year did not address.
Chelsea Higgs Wise, the leader of the advocacy group Marijuana Justice, and Gracie Burger, with the Last Prisoner Project, said Department of Corrections data suggests there are currently 10 people being held solely on serious marijuana charges.
They said it remains unknown how many more are being held because of marijuana related probation violations.
“These aren’t just numbers and there are families attached,” Burger said.
DEA Proposes Dramatic Increase In Marijuana And Psychedelic Production In 2022, Calling For 6,300 Percent More MDMA Alone
The Drug Enforcement Administration (DEA) is proposing a dramatic increase in the legal production of marijuana and psychedelics like psilocybin, LSD, MDMA and DMT to be used in research next year.
In a notice scheduled to be published in the Federal Register on Monday, the agency said there’s been a “significant increase in the use of schedule I hallucinogenic controlled substances for research and clinical trial purposes,” and it wants authorized manufacturers to meet that growing demand.
DEA had already massively upped its proposed 2021 quota for cannabis and psilocybin last month, but now it’s calling for significantly larger quantities of research-grade marijuana and a broader array of psychedelics to be manufactured in 2022.
It wants to double the amount of marijuana extracts, psilocybin and psilocyn, quadruple mescaline and quintuple DMT. What especially stands out in the notice is MDMA. The agency is proposing an enormous 6,300 percent boost in the production of that drug—from just 50 grams in 2021 to 3,200 grams in the coming year—as research into its therapeutic potential continues to expand.
LSD would see a 1,150 percent increase, up to 500 grams of the potent psychedelic.
Marijuana itself would get a 60 percent boost under DEA’s proposal, up to 3.2 million grams in 2022 from the 2 million grams last year.
Here’s a visualization of the proposed quota increase from 2021 to 2022 for marijuana and cannabis extracts:
For all other THC, psilocybin, psilocyn and MDMA:
And for other psychedelic substances like LSD, mescaline and DMT:
DEA said in the Federal Register notice that it has been receiving and approving additional applications to “grow, synthesize, extract, and manufacture dosage forms containing specific schedule I hallucinogenic substances for clinical trial purposes” to achieve these ambitious quotas.
“DEA supports regulated research with schedule I controlled substances, as evidenced by increases proposed for 2022 as compared with aggregate production quotas for these substances in 2021,” the agency said, adding that it working “diligently” to process and approve marijuana manufacturers applications in particular, as there’s currently only one farm at the University of Mississippi that’s permitted to cultivate the plant for research.
“Based on the increase in research and clinical trial applications, DEA has proposed increases in 3,4- Methylenedioxyamphetamine (MDA), 3,4-Methylenedioxymethamphetamine (MDMA), 5-Methoxy-N,N-dimethyltryptamine, Dimethyltryptamine, Lysergic acid diethylamide (LSD), Marihuana, Marihuana Extract, Mescaline, Psilocybin, Psilocyn, and All Other Tetrahydrocannabinols to support manufacturing activities related to the increased level of research and clinical trials with these schedule I controlled substances.”
Here are the exact numbers for the proposed 2021 and 2022 quotas:
|All other tetrahydrocannabinol||1,000||2,000|
A 30-day public comment period will be open after the notice is formally published on Monday.
It’s difficult to overstate just how significant the proposed 2022 increases are, but it’s certainly true that scientific and public interest in marijuana and psychedelics has rapidly increased, with early clinical trials signaling that such substances show significant therapeutic potential.
National Institute on Drug Abuse (NIDA) Director Nora Volkow told Marijuana Moment in a recent interview that she was encouraged by DEA’s previous proposed increase in drug production quota. She also said that studies demonstrating the therapeutic benefits of psychedelics could be leading more people to experiment with substances like psilocybin.
Advocates and experts remain frustrated that these plants and fungi remain in the strictest federal drug category in the first place, especially considering the existing research that shows their medical value for certain conditions.
A federal appeals court in August dismissed a petition to require the DEA to reevaluate cannabis’s scheduling under the Controlled Substances Act. However, one judge did say in a concurring opinion that the agency may soon be forced to consider a policy change anyway based on a misinterpretation of the therapeutic value of marijuana.
Separately, the Washington State attorney general’s office and lawyers representing cancer patients recently urged a federal appeals panel to push for a DEA policy change to allow people in end-of-life care to access psilocybin under state and federal right-to-try laws.
Image element courtesy of Kristie Gianopulos.
Supreme Court Won’t Hear Case On Legalizing Safe Drug Consumption Sites, But Activists Are Undeterred
The U.S. Supreme Court (SCOTUS) has rejected a request to hear a case on the legality of establishing safe injection sites where people can use illicit drugs in a medically supervised environment.
The justices announced on Tuesday that they decided against taking up the case raised by the nonprofit Safehouse, despite the pleas of attorneys general from 10 states and D.C. who recently filed amici briefs urging the court’s involvement.
Representatives from 14 cities and counties, as well as the mayor of Philadelphia, which is at the center of the current case, also filed briefs in support of the case in recent days.
Safehouse was set to launch a safe consumption site in Philadelphia before being blocked by a legal challenge from the Trump administration. It filed a petition with the nation’s highest court in August to hear the case.
But while the Supreme Court declined to take action—and the Biden administration passed up its voluntary opportunity to weigh in at this stage, which may well have influenced the justices’ decision—activists say the battle will continue at a lower federal court level, where the administration will have to file briefs revealing its position on the issue.
Disappointed but not surprised U.S. Supreme Court declined to hear our case. We’re pursuing our claims in federal court. As that litigation proceeds, Biden administration will have to take a position, which it avoided by waiving its right to respond to our Supreme Court petition.
— Safehouse (@SafehousePhilly) October 13, 2021
“We were disappointed that the government chose not to respond to our petition,” Safehouse Vice President Ronda Goldfein told Filter. “They said, ‘We’re going to waive our right to respond,’ [and] the Supreme Court declined to review our case. Ordinarily that sounds like the end of the road—but in our case we are still pursuing our claims in a different venue.”
That venue will be the the federal district court in Philadelphia, where activists plan to submit multiple arguments related to religious freedom and interstate commerce protections. The Biden administration will be compelled to file a response in that court by November 5.
“If they don’t respond, they lose,” Goldfein said.
A coalition of 80 current and former prosecutors and law enforcement officials—including one who is President Joe Biden’s pick for U.S. attorney of Massachusetts—previously filed a brief urging the Supreme Court to take up Safehouse’s safe injection case.
Fair and Justice Prosecution, the group that coordinated the amicus brief, also organized a tour of Portugal for 20 top prosecutors in 2019 so they could learn about the successful implementation of the country’s drug decriminalization law.
If the Supreme Court were to have taken the case and rule in favor of Safehouse, it could have emboldened advocates and lawmakers across the country to pursue the harm reduction policy.
The governor of Rhode Island signed a bill in July to establish a safe consumption site pilot program where people could test and use currently illicit drugs in a medically supervised environment. It became the first state in the country to legalize the harm reduction centers. It’s not clear whether the Department of Justice will seek to intervene to prevent the opening of such facilities in that state.
Massachusetts lawmakers advanced similar legislation last year, but it was not ultimately enacted.
A similar harm reduction bill in California, sponsored by Sen. Scott Wiener (D), was approved in the state Senate in April, but further action has been delayed until 2022.