Politics
Inside The DEA’s Marijuana Rescheduling Hearing: What I Saw, Who Was Missing And Why It Matters (Op-Ed)
“There was no discussion of the lasting harms of marijuana criminalization itself—the arrests, convictions, incarceration and collateral consequences that continue to affect individuals, families and communities.”
By Cat Packer, Drug Policy Alliance
At 7:15 Monday morning, I was standing outside the Drug Enforcement Administration (DEA)’s headquarters in Arlington, Virginia, waiting to attend one of the most consequential federal marijuana proceedings in decades: the DEA’s hearing on whether marijuana should be moved from Schedule I to Schedule III under the Controlled Substances Act (CSA).
Although the Drug Policy Alliance, where I work, sought permission to participate as an interested party, DEA denied our request, along with those submitted by organizations including NORML, Marijuana Policy Project, Cannabis Regulators of Color Coalition, Latino Cannabis Alliance, Law Enforcement Action Partnership, Doctors for Drug Policy Reform, the Parabola Center for Law & Policy, Supernova Women and Students for Sensible Drug Policy.
Many of these organizations have spent decades at the forefront of marijuana reform that addresses the harms of criminalization, prioritizes health, and delivers legalization that puts communities first–but were notably excluded from participation in the hearing.
Instead, the DEA designated just seven parties to participate—and every one of them opposes rescheduling.
The hearing wasn’t scheduled to begin until 9:00 a.m.—but members of the public were admitted on a first-come, first-served basis, and only a handful at a time. There was no livestream. No video broadcast. No public audio feed. If you wanted to know what was happening inside the hearing room, you had to be there.
For the first two days, I was.
On the third day, I was denied entry after being told the administrative law judge had barred public attendees after 8:50 a.m.—a restriction that had not been publicly disclosed.
Most people simply don’t have the time, flexibility or financial resources to attend a hearing like this in person. I recognize that I am fortunate to have a job that gave me the opportunity to do so. I believed it was important to attend—not only to better understand the proceeding firsthand, but also to help explain to the public what this hearing is and what it means.
From the outset, DEA framed the proceedings as advancing “regulation, not legalization.” But regulation and legalization are not competing goals—they are complementary responsibilities. By refusing to acknowledge that most Americans have embraced marijuana legalization and by excluding many of the voices that helped make those reforms possible, the hearing failed to address the central questions Americans have about the future of marijuana policy.
After spending two days inside the hearing room—and being denied access on the third—three observations stood out.
My first observation was: This conversation is being shaped by a narrow set of voices—those of DEA and of opponents of marijuana reform.
On one side of the room sat the federal government, represented by DEA and its legal counsel, defending its proposal to move marijuana to Schedule III. On the other side, sat the legal counsel of the seven designated participants selected by DEA—every one of whom opposes rescheduling.
That matters because beyond DEA, these parties are the only ones permitted to present witnesses, introduce evidence and cross-examine the government’s experts. Their testimony—and the testimony they challenge—will help shape the administrative record the administrative law judge will review before making a recommendation to DEA.
When many of the stakeholders most directly affected by federal marijuana policy are excluded from participating, the record inevitably reflects a narrower range of perspectives.
That became especially clear as the testimony unfolded.
Dr. Dominic Chiapperino, Director of the Controlled Substances Section at the Food and Drug Administration (FDA), shared testimony that was generally limited to FDA’s scientific and medical review—the process used to determine marijuana’s currently accepted medical use, abuse potential and the methodology supporting the recommendation to reschedule marijuana.
The government’s second witness, Dr. Corey Burchman, shifted the discussion from scientific analysis to clinical practice. Drawing on his experience treating patients, he described helping many patients transition from opioids to cannabis and discussed the relative risks of opioid use and marijuana.
These issues are important and deserve thoughtful consideration. But so do the perspectives that weren’t represented.
There was no discussion of the lasting harms of marijuana criminalization itself—the arrests, convictions, incarceration and collateral consequences that continue to affect individuals, families and communities. There was no discussion of the racial disparities that have characterized marijuana enforcement for decades, the Nixon-era Shafer Commission’s recommendation against criminalizing personal marijuana possession or the lessons learned from the dozens of states that have legalized and regulated marijuana.
If we are evaluating marijuana’s place under federal law, we should also evaluate these issues and the consequences of the federal policies that have governed it for more than half a century. Questions around marijuana criminalization and the social and financial cost of enforcement are central to evaluating whether the current system serves the public interest.
My second observation was: This hearing is about marijuana. Not medical vs. adult use.
Much of the recent public discussion surrounding these proceedings has focused on what rescheduling might mean for adult-use cannabis. But from the outset, government counsel made clear that, in DEA’s view, “this is not about recreational cannabis. This is about regulation, not legalization.”
But what’s important about an acknowledgement that this isn’t about ‘recreational,’ in part, is the reality that the CSA does not distinguish between “medical marijuana” and “recreational marijuana.” It regulates “marihuana” as a single defined substance, and this hearing is considering whether that substance—as defined in the CSA—should move from Schedule I to Schedule III.
There is one important exception. Earlier this year, DEA finalized a separate rule moving FDA-approved marijuana medications and marijuana produced by qualifying state-licensed medical marijuana operators with DEA registration into Schedule III. Those decisions are already final and are not being reconsidered here. Everything else that falls within the federal definition of marijuana remains in Schedule I and criminalized under federal law.
My third observation was: This hearing matters—but it fails to consider or address the biggest questions facing marijuana reform.
This hearing is only one step in the administrative process.
Every question asked and every answer given becomes part of the official record. Once the hearing concludes, the administrative law judge will compile that record and issue a recommended decision to DEA. The agency will then determine whether to issue a final rule, and whatever decision it reaches will almost certainly face judicial review.
In other words, this hearing matters—but it is not the final word.
That brings me back to the government’s opening statement: that this proceeding is “about regulation, not legalization.”
The American people have repeatedly made clear that they are ready to move beyond marijuana criminalization. They also expect thoughtful regulation that protects public health, supports scientific research, creates clear rules for legitimate businesses, draws on the lessons learned by states and begins repairing the harms created by decades of prohibition.
Legalization and regulation are not mutually exclusive. Nor do they have to be competing goals. They should be complementary responsibilities.
Rescheduling may change marijuana’s status under federal law, but it will not end federal criminalization, resolve the conflict between federal and state law or create the comprehensive regulatory framework the country increasingly needs and expects. Those are questions that only Congress can answer.
That is why, regardless of how DEA ultimately rules, Congress should advance comprehensive marijuana reform through legislation such as the Marijuana Opportunity Reinvestment and Expungement (MORE) Act and the Cannabis Administration and Opportunity Act (CAOA). Ending federal marijuana criminalization, supporting state-regulated systems, restoring rights, releasing those still incarcerated for marijuana offenses and beginning to repair the harms of prohibition are not separate from the conversation about regulation—they are essential to it.
I won’t be able to attend the remainder of the hearing in person. Like most members of the public—and like the many organizations and experts denied the opportunity to participate as designated parties—I will be waiting to see what ultimately comes from a process that has been both exclusionary and lacking in transparency.
What I already know, however, is this: if we want a marijuana policy that protects public health, advances evidence-based regulation, addresses the harms of prohibition, and reflects the will of the American people, we need both legalization and regulation.
Cat Packer is the director of drug markets & legal regulation at the Drug Policy Alliance and a distinguished cannabis policy practitioner in residence at The Ohio State University Moritz College of Law Drug Enforcement and Policy Center. From 2017 through 2022, Packer served as the first executive director of the City of Los Angeles Department of Cannabis Regulation.
