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Over 80 Groups Urge Biden Administration to End Federal Prohibition of Marijuana and Support Comprehensive Reform [1]

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Date: 2023-04-20

President Joseph R. Biden

The White House

1600 Pennsylvania Avenue NW

Washington, DC 20500

CC:

The Honorable Merrick Garland

Attorney General

950 Pennsylvania Avenue NW

Washington, D.C. 20530

The Honorable Xavier Becerra

Health and Human Services Secretary

200 Independence Ave SW

Washington, DC 20201

The Honorable Anne Milgram

Administrator of Drug Enforcement

8701 Morrissette Drive

Springfield, VA 22152

The Honorable Robert Califf

Commissioner of Food and Drugs

10903 New Hampshire Avenue

Silver Spring, MD 20993



Dear President Biden:

We, the undersigned local, state, and national advocacy organizations, write to acknowledge your October 6, 2022 announcement pardoning simple federal marijuana possession cases for some people, encouraging state governors to also pardon marijuana cases, and initiating the administrative review process for evaluation of marijuana’s placement on the Controlled Substances Act (CSA) drug schedule. We share your administration’s sentiment that “too many lives have been upended because of our failed approach to marijuana,” and are encouraged by these important first steps towards ending and repairing the harms caused by marijuana criminalization and the racist enforcement of marijuana laws.

Nonetheless, these actions alone, will neither fully end future harms of marijuana criminalization nor repair past harms. Accordingly, we urge you and your administration to take the steps necessary to deschedule marijuana in conjunction with other administrative actions that center Black, Indigenous, and people of color (BIPOC) communities.[1] Additionally, we implore your administration to support comprehensive marijuana reform legislation in Congress, such as the Cannabis Administration and Opportunity Act (CAOA), a bill that deschedules marijuana, repairs the past harms of prohibition, and provides a regulatory framework for marijuana markets.

Background

The overwhelming majority of individuals impacted by federal marijuana criminalization were left out of the relief granted by the pardons.[2] Notably, the pardon announcement did not lead to the release of any individuals from federal incarceration because federal sentencing schemes typically send people to prison for higher-level offenses that are more complex than simple marijuana possession.[3] For instance, none of the 8,653 people sentenced for marijuana trafficking offenses from 2017 to 2021 would be eligible for relief under the pardon. These prosecutions often resulted in stiff sentences even for people with little-to-no prior criminal history, with approximately one out of five given sentences for five years or longer despite fewer than 2% being classified as career offenders.[4] Notably, Black and Hispanic individuals accounted for 80.7% of these federal marijuana trafficking convictions.[5] These sentences were imposed at a time when dozens of states have already legalized some form of commercial production and distribution of marijuana, with 37 states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands having done so for medical or adult-use as of 2023.[6]

Additionally, the pardon announcement explicitly excluded a large share of noncitizens, who face mandatory detention, deportation, and other immigration consequences based on minor possession convictions. In fact, since 2003, ICE has deported more than 45,000 immigrants whose most serious offense was marijuana possession.[7] Even those noncitizens who were included in the announcement should be provided specific assurance from the Administration that pardoned convictions will not be used as a basis for deportation or denial of immigration benefits.

Moreover, noncitizens suffer extreme immigration penalties due to the federal prohibition on marijuana even when they are in compliance with state and local marijuana laws. Although 21 states and the District of Columbia have legalized marijuana for adults 21 and older,[8] noncitizens are regularly denied green cards and naturalization, and deported, for admitting to conduct that is permitted under state law, such as use of medical or recreational marijuana; working legally in the marijuana industry; or for old convictions that are “expunged” or sometimes even vacated, because the Department of Homeland Security does not always give effect to state post-conviction relief.[9]

Further, the pardon announcement leaves everyone at risk for future federal marijuana arrests, even for simple possession. Given the impact that a marijuana possession charge can have on future sentences as well as the racial disparities in marijuana arrests, the continuation of marijuana criminalization will allow for continued arrests, and only exacerbate racial injustice in criminal sentencing.[10] Marijuana legalization is popular on both sides of the aisle, with 68% of those polled supporting marijuana legalization, including majorities from both Democrats and Republicans.[11] To end and repair the harms of criminalization, it is essential that the federal government “deschedule” (remove) marijuana from the CSA.

We urge you and your administration to take bold action to bring about marijuana descheduling and comprehensive reform rooted in equity. Such reforms should automatically expunge federal marijuana cases, provide pathways to resentencing and release, and ensure that noncitizens will not be arrested, detained, deported, denied immigration status or otherwise face immigration consequences for federal or state marijuana law violations, including for working in state-legal marijuana industries. Importantly, legal relief for marijuana offenses must be applied retroactively in order for formerly incarcerated individuals to have a chance at rebuilding their lives and for noncitizens to live free of the fear of deportation for old offenses or prior marijuana industry work history.

Beyond these criminal justice reforms, the federal government must take a comprehensive approach to reform that centers BIPOC communities that have suffered disproportionate and immeasurable social and economic harms from targeted marijuana criminalization. In order to account for these harms marijuana descheduling must be coupled with an equitable regulatory framework that makes certain the economic benefit of the regulated marijuana industry flows to those who are most impacted by the war on drugs and disproportionately targeted by racially biased enforcement of marijuana laws.

Currently, a person in the U.S. is arrested for marijuana every 90 seconds, with Black, Latinx, and Indigenous individuals being disproportionately targeted despite similar usage rates as their white counterparts.[12] [13] While most of these arrests are made by state and local law enforcement, federal criminalization of marijuana is highly influential and discourages states from undertaking comprehensive marijuana reform.[14] What is more, people with state law convictions are still subject to federal collateral consequences, including immigration consequences, and their record at the state level can still block them from accessing housing, jobs, and could complicate keeping families together. To end the hundreds of thousands of marijuana arrests and collateral consequences that take place every year, we must deschedule marijuana from the CSA.

Administrative Descheduling: Necessary But Insufficient

Marijuana must be fully removed from the CSA and descheduled. Rescheduling marijuana to a less restrictive schedule in the CSA would do little to address the harms of federal criminalization. As long as marijuana remains anywhere in the CSA, the majority of the problems associated with its criminalization will persist. Rescheduling would not bring the marijuana industry into compliance with existing federal laws and regulations outside of the CSA, such as the Food, Drug, and Cosmetic Act. The criminal penalties in the CSA are not tied to schedule status, meaning rescheduling would not stop future arrests, reduce sentences, or provide a pathway for resentencing, and it would continue to imperil noncitizens. Workers in the state-legal marijuana industry would continue to be denied the protections of the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) that are available to laborers in other industries. Small marijuana businesses and social equity entrepreneurs would continue to be denied access to Small Business Administration (SBA) funds, meaning large white-owned corporations would be able to further expand their economic advantage to profit off of the sales of a substance for which BIPOC individuals have been disproportionately prosecuted and remain incarcerated. Marijuana research would continue to face regulatory hindrances. Veterans would continue to be denied access to medical marijuana programs through their Veterans Administration doctors. Banks would continue to be hesitant to offer commercial loans to marijuana businesses, even if a safe-harbor bill is passed in the interim.

These are just some of the many consequences that can come from keeping marijuana in the CSA.[15] Therefore, it is imperative that you and your administration take the steps necessary to deschedule marijuana, couple this with other administration actions that center BIPOC communities, and support comprehensive marijuana legislation in Congress.[16]

We understand that the POTUS cannot unilaterally end federal marijuana criminalization with the stroke of a pen. According to the Congressional Research Service, substances “may be added to or removed from a schedule or moved to a different schedule through agency action or by legislation.”[17] While you have taken the bold first step toward administrative review, it remains unclear whether enough research has been conducted that will satisfy the way Health and Human Services (HHS) has traditionally applied the 8-factor analysis required by 21 U.S.C. § 811. Ironically, the primary reason for the lack of “well-controlled, well-designed, well-conducted, and well-documented scientific studies, including studies performed in a large number of patients” is due to the restrictions imposed by Schedule 1 on conducting large-scale clinical research on marijuana.[18]

We urge HHS and the Drug Enforcement Administration (DEA) to interpret the statutory requirements in a way that better reflects the political and scientific realities of marijuana. If the available science is generally as limited and interpreted as it was in the 2016 marijuana schedule status decision, there is a reasonable probability marijuana could remain in Schedule 1 despite it obviously not belonging there.[19] While we must take science into account, we must also recognize that until very recently, marijuana had significantly more research barriers compared to other Schedule 1 substances.[20] While the Medical Marijuana and Cannabidiol Research Expansion Act you signed into law last year lifted many of these barriers, it will be many years, if not decades, until that bill results in completed research. This means it will be years before marijuana can be reviewed evenly compared to other substances which are easier to research. Given the vast harms caused by marijuana’s placement in the CSA, we cannot afford to maintain federal marijuana criminalization while waiting for new research to become available.

Additionally, we urge you to form a task force to explore the appropriate schedule status of marijuana that takes into account factors that cannot be considered by HHS or DOJ agencies during the formal scheduling review. For example, medical studies conducted outside of the U.S. will not be considered under the 8-factor analysis but it would be a disservice for your administration not to take such studies into account. Groundbreaking marijuana research has been conducted in Israel and Europe but these will not be reviewed under the formal schedule status evaluation. Additionally, the political and social implications of marijuana’s Schedule 1 status and the impacts of descheduling could be evaluated by such a task force. At a minimum, this task force should be composed of individuals who have been directly impacted by the racially disproportionate enforcement of marijuana criminalization, immigration advocates, social equity entrepreneurs, doctors, patients, researchers, veterans, and marijuana labor representatives.

In the meantime, there are other steps the administration can take in order to end the harms of criminalization, such as directing agencies to stop using state law marijuana convictions as a basis to deny federal benefits or as triggers for deportation. The Department of Justice could also issue a guidance memo to stop the prosecution of people for low-level marijuana offenses.[21] The administration can also roll back the Reagan-era executive action that spurred pervasive drug testing for federal employees.

As you acknowledged in your October 6, 2022 statement, individuals with a previous marijuana conviction “may be denied employment, housing, or educational opportunities as a result.”[22] Therefore, we urge you to direct agencies such as the Department of Agriculture, Housing and Urban Development, Education, Homeland Security, and the Veterans Administration to adopt policies to lessen the collateral consequences of a marijuana conviction with respect to accessing federal benefits. Additionally, the Veterans Administration could take steps to make it easier for veterans to find relief from their battle wounds such as post traumatic stress disorder, traumatic brain injury, and chronic pain through the use of medical marijuana. In making these reforms, it is crucial to meet with advocacy groups and stakeholders, particularly individuals who have been directly and negatively impacted by these agencies for marijuana conduct. These are a few of many actions the administration can take to end the current harms of marijuana prohibition and criminalization, including reducing the harms of state law convictions which account for the vast majority of low-level marijuana convictions in the U.S.[23]

The administrative descheduling of marijuana, coupled with other administrative actions, would be a huge step forward on criminal justice reform and would lay the cornerstone upon which additional components of comprehensive marijuana reform could be built. However, administrative descheduling in the absence of a comprehensive regulatory framework could potentially have some adverse consequences in the form of unregulated interstate commerce, which could wipe out many small marijuana businesses and social equity license holders without proper regulatory controls. Additionally, administrative descheduling would not be applied retroactively, nor would descheduling expunge federal marijuana arrests, seal records, or protect noncitizens from detention or deportation for marijuana conduct. This means the White House must work with Congress to pass comprehensive descheduling legislation.

Comprehensive Marijuana Legislation Must Accompany Descheduling

Descheduling marijuana through comprehensive Congressional legislation is the preferred path to end and repair the harms caused by criminalization. The House of Representatives has twice passed comprehensive descheduling legislation, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, in 2020 and 2022, that contained automatic expungement, retroactive relief, and dedicated marijuana tax revenue to reinvest in communities harmed by discriminatory enforcement of criminalization. More recently, Senate Majority Leader Schumer along with Senators Booker and Wyden introduced the Cannabis Administration and Opportunity Act (CAOA) in the 117th Congress. This bill builds off of the MORE Act and includes enhanced criminal justice reform, stronger protections for noncitizens, and a more robust regulatory framework. We urge you to use your influence to encourage Congress to pass comprehensive marijuana descheduling legislation that includes a well-thought-out plan for federal regulation and for implementing interstate commerce that is rooted in equity.

You have already taken an important initial step toward ending the failed policy of federal marijuana prohibition. Taking the additional actions outlined in this letter would have an exponentially greater impact than the first step alone. To end and repair the harms of decades of racially discriminatory enforcement of marijuana laws, we need complete and comprehensive legislative reform. This is not only the right thing to do, it is the popular thing as well, as a Data For Progress poll found even in states where marijuana remains criminalized, bipartisan majorities support ending marijuana criminalization for personal use and sales.[24]

We implore you to take whatever steps are necessary to make sure marijuana is descheduled and encourage Congress to pass comprehensive legislation that includes criminal justice reform, repairing and centering communities most harmed by prohibition and criminalization, and a regulatory framework that is rooted in equity, justice, and public health.

For any questions about anything in this letter, or to discuss these objectives, please contact Maritza Perez Medina, Director of Federal Affairs at the Drug Policy Alliance, at [email protected]. Thank you for your attention to this letter.

Sincerely,

[END]
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[1] Url: https://www.hrw.org/news/2023/04/20/over-80-groups-urge-biden-administration-end-federal-prohibition-marijuana-and

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