President-elect Joe Biden has picked the current attorney general of California to lead serve as the next federal secretary of health and human services, a position that could play a central role in loosening laws prohibiting marijuana.
That seems to be good news for legalization advocates, as Attorney General Xavier Becerra (D) has a considerable record supporting cannabis reform and working to protect California’s legal program from federal interference.
What’s yet to be seen is who President-elect Biden will nominate as U.S. attorney general—a position that’s also significantly consequential when it comes to marijuana’s classification and enforcement of drug laws.
Before getting into the details of Becerra’s record, here’s why the U.S. Department of Health and Human Services (HHS) is important to enacting a cannabis policy change at the federal level: 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.
In other words, HHS is a key player in enacting reform through the available executive process. And Becerra has made clear that he feels federal marijuana policy needs to change, even if he hasn’t weighed in specifically on scheduling.
As far as Biden in concerned, he feels marijuana should be placed in Schedule II, the second most restrictive category under the Controlled Substances Act. But advocates argue that does not go far enough and could have an inadvertent, adverse impact on state-legal markets. They’re pushing him to adopt a policy of complete descheduling, which would be accomplished if a bill approved by the House last week makes it through the Senate and onto the president’s desk.
But even if Congress doesn’t advance cannabis legalization though the whole legislative process, the next administration can enact some amount of reform on its own, administratively—and that’s where Becerra would come in if confirmed by the Senate to join Biden’s cabinet.
Here’s where would-be HHS secretary Becerra stands on cannabis:
On states’ rights
Last year, Becerra was one of 21 state attorneys general who sent a letter to congressional leaders expressing support for a bipartisan bill to protect state-legal cannabis programs against federal intervention.
“Just as we allow alcohol to be sold, we’ve come into the 21st century and announced that it’s better to regulate marijuana than criminalize it,” he told The Los Angeles Times in 2017. “The federal government has to catch up and get into the 21st century, first. Secondly, we have to make sure the federal government is helping us, not hindering us, when it comes to coming up with a good way to regulate it.”
“So it behooves the federal government to pull its head from underneath the sand and start to figure out how to do this the right way,” he said. “There are far more important things to worry about than whether someone’s smoking marijuana for medicinal purposes or not.”
In July, the state’s top prosecutor asked a federal court to reject a Justice Department lawsuit that sought to force regulators to hand over documents about several licensed marijuana businesses.
“I think at this stage what we’re finding is that, with more than half the states in the country having some form of legalized marijuana, that we’re moving forward,” Becerra said in 2018, responding to a question about then-Attorney General Jeff Sessions signaling that a federal crackdown could come. “This is a 21st century, not the 20th century.”
“We can’t stop the federal government from doing what the federal government is allowed to do under the Constitution, but the federal government is not absolute in its power,” he said. “The Constitution restricts the federal government’s ability to intervene in state affairs and so, to the degree that we have rights under the U.S. Constitution to move forward with the public safety and the general welfare of our 40 million residents, we will. And if the federal government tries to interfere, we’ll challenge them wherever we need to.”
— Attorney General Becerra (@AGBecerra) January 7, 2018
California voters have made it clear: when it comes to the #cannabis industry, California is moving forward, not backwards.
I stand ready to defend the laws of our state and its citizens against any and all threats.
— Attorney General Becerra (@AGBecerra) February 20, 2018
“In California, we decided it was best to regulate, not criminalize, cannabis. Unlike others, we embrace, not fear, change. After all, this is 2018 not the 20th century,” he said in 2018. “At the California Department of Justice we intend to vigorously enforce our state’s laws and protect our state’s interests.”
At the California Department of Justice we intend to vigorously enforce our state's laws and protect our state's interests. 2/2
— Attorney General Becerra (@AGBecerra) January 4, 2018
In 2019, Becerra’s office released guidelines for continuing to implement the state’s medical cannabis program.
To reflect the evolution of cannabis legalization in California, the CADOJ is releasing new guidelines that clarify our laws governing the enforcement, transportation, and use of medicinal cannabis. https://t.co/ciKZAg0oCO pic.twitter.com/7KPu2wezBY
— Attorney General Becerra (@AGBecerra) August 6, 2019
“In light of California’s legalization of recreational adult-use cannabis, as well as its decision to remove the use and cultivation of physician-recommended medicinal cannabis from the scope of the state’s drug laws,” the document says, “it is recommended that state and local law enforcement officers not arrest individuals or seize cannabis under federal law when the officer determines, from the facts available, that the cultivation, transportation, delivery, and/or possession, is permitted under California’s medicinal or adult use cannabis laws.”
On marijuana banking
On several occasions, Becerra has teamed up with other state attorneys general from across the country in calling on Congress to pass legislation to expand cannabis businesses’ access to banking services.
One such letter from last year was signed Becerra and 37 other state attorneys general who pressed federal lawmakers to allow legal marijuana businesses to access the banking system.
— Attorney General Becerra (@AGBecerra) May 8, 2019
“Regardless of how individual policymakers feel about states permitting the use of medical or recreational marijuana, the reality of the situation requires federal rules that permit a sensible banking regime for legal businesses,” they wrote.
In a 2018 letter to lawmakers, the attorney general and 16 of his counterparts wrote that “we are requesting legislation that would provide a safe harbor for depository institutions that provide a financial product or service to a covered business in a state that has implemented laws and regulations that ensure accountability in the marijuana industry such as” the Secure and Fair Enforcement (SAFE) Banking Act.
The future of small and local licensed businesses has been threatened by the Trump Administration's relentless attacks on progress, in conflict with the will of voters 2/2 https://t.co/Oir3EAT04m
— Attorney General Becerra (@AGBecerra) January 16, 2018
Earlier this year, Becerra joined 33 other state attorneys general in signing a letter to House and Senate leadership that called on Congress to pass a coronavirus relief bill that included SAFE Banking Act language.
Congress should move swiftly to pass this commonsense legislation and provide relief to the many local cannabis businesses who are playing by the rules. https://t.co/IK1eJYL1kB
— Attorney General Becerra (@AGBecerra) May 19, 2020
“The continued exclusion of the licensed cannabis industry from the federal banking system is untenable—and unwise,” he said in a press release. “The coronavirus crisis has only exacerbated the economic and investigatory challenges that arise from keeping a $15 billion industry in the shadows. Congress should move swiftly to pass this commonsense legislation and provide relief to the many local cannabis businesses that are playing by the rules.”
The attorney general’s office also announced in 2018 that it would be conducting a study into the possibility of setting up a state-run publicly owned bank to service the marijuana industry.
On California cannabis eradication and regulations
While pushing for federal reforms to marijuana policies and defending his state’s program from interference, Becerra has also led efforts to crack down on cannabis operations in California that do not comply with local law.
The attorney general said in 2019 that illegal cultivation and marijuana sales represent some of the most challenging regulatory enforcement problems and that these illicit activities harm “the ability for the industry to be a legitimate one.” However, he said, “I do agree with the initiative and the votes of the people in California to move from criminalizing to regulating cannabis.”
Illegal cannabis grows on California lands are damaging wildlife habitats, poisoning our water, and hurting our communities.
— Attorney General Becerra (@AGBecerra) January 16, 2020
He and other California officials held a press conference in partnership with the Justice Department in 2018 to highlight the consequences of illicit marijuana cultivation on public lands, focusing in particular on the dangers associated with pesticides.
In October of this year, Becerra touted that more than 1.1 million marijuana plants at 455 illegal grow sites were eradicated as part of the state’s annual Campaign Against Marijuana Planting (CAMP) Program. Also, 140 people were arrested.
Our CAMP team eradicated more than one million illegal marijuana plants as part of our annual Campaign Against Marijuana Planting.
— Attorney General Becerra (@AGBecerra) October 8, 2020
“Illegal marijuana planting risks public safety, endangers public health, and devastates critical habitats and wildlife,” he said. “Every year, the California Department of Justice works with federal, state, and local partners to hold illegal growers accountable and reclaim our public lands.
The prior year, his office announced that 148 people had been arrested and 953,459 marijuana plants were destroyed at 345 illegal grow sites.
Pleased to announce the results of our CAMP team’s tireless work to eradicate illegal #cannabis grows.
— Attorney General Becerra (@AGBecerra) November 4, 2019
“Illegal cannabis grows are devastating our communities,” Becerra said. “Criminals who disregard life, poison our waters, damage our public lands, and weaponize the illegal cannabis black market will be brought to justice.”
Becerra, who served in the U.S. House from 1993-2017, didn’t proactively cosponsor any marijuana reform bills. However, he did vote in favor of numerous cannabis-related spending bill amendments on the floor, including one in 2015 to prevent the Justice Department from using its funds to intervene in any state-legal marijuana programs.
Last night I voted to bring clarity to states, businesses and individuals regarding medical marijuana laws. #MMJ
— Attorney General Becerra (@AGBecerra) May 30, 2014
He voted for a more limited rider to protect state medical cannabis programs all eight times that it came up for a vote while he was in office, starting in 2003. The then-congressman also approved amendments to let the U.S. Department of Veterans Affairs recommend medical marijuana to veterans, protect state industrial hemp and CBD programs, give cannabis businesses access to the banking system and promote hemp research.
On broader drug policy
In July, Becerra and a coalition of other state attorneys general filed an amicus brief in a federal court defending the right of a safe injection facility for currently illicit drugs to open in Philadelphia, Pennsylvania.
“The opioid epidemic has devastated communities throughout our nation. Safe injection sites aim to increase public health and safety by providing comprehensive services to victims of the opioid epidemic, while reducing the public nuisance of drug use in public spaces,” he said. “Safe injection sites like Safehouse are an innovative tool to combat the opioid epidemic and drug dependency while reducing overdose death and transmission of diseases. California has always been a trailblazer, and we’re committed to doing what it takes to keep our communities healthy and safe.”
What to expect if Becerra leads HHS
As HHS secretary, Becerra seems likely to support any Biden administration marijuana rescheduling effort and to push for broader drug policy reforms as well.
And while the president-elect remains opposed to federally descheduling cannabis for now, he’s pledged to reschedule the plant, which he could leave up to HHS and the Justice Department to facilitate the specifics of. The attorney general nominee is yet to be named, but in HHS, it stands to reason that Becerra would happily go along with a reclassification, if not advocate for further changes.
Process-wise, the secretary of HHS is able to unilaterally submit a petition for rescheduling to the attorney general. After the Justice Department reviews a request, the Food and Drug Administration (under HHS) conducts its own analysis and the HHS secretary sends its findings and recommendations back to the attorney general. The health agency’s medical and scientific findings are then binding on the Justice Department’s scheduling decision.
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.