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.
Congressman Files New Marijuana Banking Reform Amendment To Large-Scale House Bill
The House sponsor of a bill to protect banks that work with state-legal marijuana businesses announced on Friday that he is seeking to attach an amendment containing the reform to a broader bill dealing with research and innovation in the tech and manufacturing sectors.
Rep. Ed Perlmutter (D-CO), sponsor of the Secure and Fair Enforcement (SAFE) Banking Act, has expressed interest in finding another vehicle to pursue his proposal after it was stripped from a separate defense bill late last year. The congressman’s legislation has cleared the House in five forms at this point, only to stall in the Senate.
His latest attempt to get the reform enacted is by filing an amendment with the SAFE Banking language to the America COMPETES Act, which does not deal specifically with cannabis issues as drafted but was introduced in the House this week.
“Cannabis-related businesses—big and small—and their employees are in desperate need of access to the banking system and access to capital in order to operate in an efficient, safe manner and compete in the growing global cannabis marketplace,” Perlmutter, who is retiring from Congress after this session and committed to passing his bill first, said in a press release.
I have filed #SAFEBanking as an amendment to #AmericaCOMPETES b/c cannabis-related businesses – big and small – are in desperate need of access to capital & the banking system in order to operate in an efficient, safe manner & compete in the growing global cannabis marketplace.
— Rep. Ed Perlmutter (@RepPerlmutter) January 28, 2022
“The SAFE Banking Act is the best opportunity to enact some type of federal cannabis reform this year and will serve as the first of many steps to help ensure cannabis businesses are treated the same as any other legal, legitimate business,” he said. “I will continue to pursue every possible avenue to get SAFE Banking over the finish line and signed into law.”
It remains to be seen whether the America COMPETES Act will serve as a more effective vehicle for the cannabis banking bill than the National Defense Authorization Act (NDAA), where the language was successfully attached on the House side but later removed amid bicameral negotiations. Perlmutter said at the time that Senate leadership, which is working on comprehensive legalization legislation, was to blame for the decision to remove his amendment from the proposal.
The new SAFE Banking Act amendment will still need to be made in order by the House Rules Committee in order to be formally be considered on the House floor when the body takes up the research and innovation package. The deadline to file amendments was Friday, and the panel is set to take them up starting on Tuesday.
Even some Republicans are scratching their heads about how Democrats have so far failed to pass the modest banking reform with majorities in both chambers and control of the White House. For example, Rep. Rand Paul (R-KY) criticized his Democratic colleagues over the issue last month.
In the interim, federal financial regulator Rodney Hood—a board member and former chairman of the federal National Credit Union Administration (NCUA)—recently said that marijuana legalization is not a question of “if” but “when,” and he’s again offering advice on how to navigate the federal-state conflict that has left many banks reluctant to work with cannabis businesses.
Ohio Lawmakers Will Be Forced To Consider Marijuana Legalization As State Validates Activist Signatures
Ohio activists have collected enough signatures to force the legislature to take up the issue of marijuana legalization, the secretary of state’s office confirmed on Friday.
This comes about two weeks after the Coalition to Regulate Marijuana Like Alcohol (CTRMLA) submitted a final round of signatures for the measure. The petitions’ formal validation triggers the legislative review of legalization, but it does not require lawmakers to enact the reform.
The legislature now has four months to consider the campaign’s cannabis reform proposal. Lawmakers can adopt the measure, reject it or pass an amended version. If they do not pass the measure, organizers can then collect an additional 132,887 valid signatures from registered voters to place the issue on the ballot in November.
CTRMLA previously submitted petitions for the initiative but the state said they were short some 13,000 signatures, requiring activists to go back and make up the difference.
“We are ready and eager to work with Ohio legislators over the next four months to legalize the adult use of marijuana in Ohio,” CTRMLA spokesman Tom Haren said in a press release. “We are also fully prepared to collect additional signatures and take this issue directly to voters on November 8, 2022, if legislators fail to act.”
The measure that lawmakers will be required to consider would legalize possession of up to 2.5 ounces of cannabis for adults 21 and older, and they could also have up to 15 grams of marijuana concentrates. Individuals could grow up to six plants for personal use, with a maximum 12 plants per household.
A 10 percent sales tax would be imposed on cannabis sales, with revenue being divided up to support social equity and jobs programs (36 percent), localities that allow adult-use marijuana enterprises to operate in their area (36 percent), education and substance misuse programs (25 percent) and administrative costs of implementing the system (three percent).
A Division of Cannabis Control would be established under the state Department of Commerce. It would have authority to “license, regulate, investigate, and penalize adult use cannabis operators, adult use testing laboratories, and individuals required to be licensed.”
The measure gives current medical cannabis businesses a head start in the recreational market. Regulators would need to begin issuing adult-use licenses to qualified applicants who operate existing medical operations within nine months of enactment.
The division would also be required to issue 40 recreational cultivator licenses and 50 adult-use retailer licenses “with a preference to applications who are participants under the cannabis social equity and jobs program.” And it would authorize regulators to issue additional licenses for the recreational market two years after the first operator is approved.
Individual municipalities would be able to opt out of allowing new recreational cannabis companies from opening in their area, but they could not block existing medical marijuana firms even if they want to add co-located adult-use operations. Employers could also maintain policies prohibiting workers from consuming cannabis for adult use.
Further, regulators would be required to “enter into an agreement with the Department of Mental Health and Addiction Services” to provide “cannabis addiction services,” which would involve “education and treatment for individuals with addiction issues related to cannabis or other controlled substances including opioids.”
With respect to social equity, some advocate are concerned about the lack of specific language on automatic expungements to clear the records of people with convictions for offenses that would be made legal under the legislation. That said, it does include a provision requiring regulators to “study and fund” criminal justice reform initiatives including expungements.
Ohio voters rejected a 2015 legalization initiative that faced criticism from many reform advocates because of an oligopolistic model that would’ve granted exclusive control over cannabis production to the very funders who paid to put the measure on the ballot.
Activists suspended a campaign to place another measure on the 2020 ballot due to the coronavirus pandemic.
Aside from the new voter initiative, state lawmakers from both parties are separately working to advance marijuana reform.
A legalization bill that was the first of its kind to be introduced in the Ohio legislature last year would legalize the possession, sale and cultivation of cannabis by adults. It’s being championed by Reps. Casey Weinstein (D) and Terrence Upchurch (D).
A pair of Ohio Republican lawmakers similarly filed a bill to legalize marijuana in the state in December. Reps. Jamie Callender (R) and Ron Ferguson (R) first announced their plan to push the legislative reform proposal in October and circulated a co-sponsorship memo to build support for the measure.
There are also additional local reform efforts underway in Ohio for 2022.
After voters in seven cities approved ballot measures to decriminalize marijuana possession during last November’s election—which builds on a slew of previous local reforms in the state—campaigns are now looking to enact decriminalization in Marietta, Rushville, Rutland, Shawnee, McArthur and Laurelville.
Ohio marijuana activists already successfully proved that they turned in enough valid signatures to put a local decriminalization initiative before Kent voters after having missed the 2021 ballot due to a verification error on the part of county officials. That measure is now expected to go before voters this November.
Top Federal Drug Official Says Marijuana Use ‘Stable’ Among Youth At Prohibitionist-Hosted Panel Sponsored By D.A.R.E.
A top federal drug official participated in a panel hosted by a prohibitionist group and sponsored by D.A.R.E.—and she again reiterated that data shows youth marijuana use has remained stable “despite the legalization in many states.”
While National Institute on Drug Abuse (NIDA) Director Nora Volkow expressed concerns about certain cannabis trends related to potency, commercialization and use by pregnant women, she affirmed that surveys funded by her own federal agency have demonstrated that adolescent marijuana use is “stable,” despite repeated arguments from prohibitionists that legalization would lead more young people to experiment with cannabis.
The event was hosted by Smart Approaches to Marijuana (SAM), an anti-legalization group. SAM President Kevin Sabet and the organization’s co-founder former Rep. Patrick Kennedy (D-RI) led the discussion.
“The higher the content of THC, the greater the likelihood that you will become addicted to the drug… The content of THC has gone up at least 4-fold.”
– Dr. Nora Volkow, M.D., Director of the National Institute on Drug Abuse (NIDA)
— SAM (@learnaboutsam) January 28, 2022
Sabet said that data on youth use has showed varying results in states that have legalized cannabis and asked Volkow to weigh in on the issue. She replied that federal data “have not been able to see large differences in terms of prevalence” of cannabis consumption among young people in legal and non-legal states.
The official made similar comments in an interview with Marijuana Moment late last year.
That said, Volkow said that they have seen some differences when it comes to consumption rates among adolescents for edible cannabis products.
“But the effects are not large, and one of the things that also certainly surprised me [is] the rate overall, the prevalence rates of marijuana use among teenagers, have been stable despite the legalization in many states,” she said, adding that there are some concerns about increased frequency of use and limitations in data collection with respect to dosages being taken.
Volkow also commented on a recent federally funded survey that found illicit drug use by young people has taken a significant plunge in the last year, though she largely attributed that to the reduced social interaction resulting from COVID-19 policies across the country.
“Interestingly what we’ve observed during the COVID pandemic is, across schools in the United States, the prevalence of drug use has gone down,” she said, “which likely very much reflects the fact that kids don’t have the opportunity to interact with others, and drug taking at that stage is a peer pressure behavior.”
The official also briefly addressed the fact that she feels criminalizing people over drugs in the first place is the wrong policy approach—a point she’s made repeatedly in interviews and blog posts.
She said that “criminalization has created a system for that allows a structural racism to be implemented, you can control people, and that’s a horrible policy. This criminalization actually opens up our eyes that well, yes, we need to change that.”
However, she said that “liberalizing and making the drugs widely available, with no counter messaging,” is not the alternative she would recommend.
“We need to provide them [addicts] with treatment, so just to say ok we are going to liberalize everything… and not support treatment for those people under those conditions, I actually think it is quite irresponsible.”
– Dr. Nora Volkow, M.D., Director of NIDA
— SAM (@learnaboutsam) January 28, 2022
While the SAM-hosted event did not touch specifically on psychedelics policy, Volkow has also recently discussed that issues, especially as data has shown an increase in use of the substances among adults.
She said people are going to keep using substances such as psilocybin—especially as the reform movement expands and there’s increased attention being drawn to the potential therapeutic benefits—and so researchers and regulators will need to keep up.
Volkow also mentioned that NIDA is “pleased” the Drug Enforcement Administration recently announced plans to significantly increase the quota of certain psychedelic drugs to be produced for use in research.
Photo courtesy of Philip Steffan.