The DEA Fails to Reschedule Cannabis

By David Jenison

The DEA Fails to Reschedule Cannabis

Forty-five years ago, the Nixon Administration outlawed cannabis through the Controlled Substances Act (CSA) making it a wholly prohibited Schedule I substance. Many attempts have been made to affect a schedule change since, but the Drug Enforcement Administration (DEA) denied them every time. Despite this track record, the latest attempt (four years in the making) had people thinking this time might be different. Schedule change is now an official plank in the Democratic Party’s platform, a majority of Republicans want to end prohibition, a majority of medical doctors endorse medical cannabis and countless people and organizations wanted it to happen. Rescheduling would not make cannabis legal, but it would end the full-scale prohibition on medical cannabis, prescriptions and most research.

Most organizations, including PRØHBTD and countless medical doctors, expected the DEA to concede. Instead, the prohibitionist diehards denied the schedule change, preferring to spend billions more in taxpayer dollars to send cannabis consumers (mostly poor and/or non-white) to jail rather than give them the medicine they desire. For those just now tuning into the saga, the following is a breakdown of what happened.

The Schedules

The CSA categories substances in five schedules. Cannabis landed in the wholly prohibited Schedule I, a category limited to highly addictive and dangerous substances with absolutely no medical value. Other drugs in this category include peyote, heroin, acid, GHB, ecstasy, khat, LSD and psychedelic bufotoxin as found on the skin of certain poisonous toads. By comparison, Schedule II substances include cocaine, crystal meth and OxyContin. It is clearly absurd to categorize cannabis in either of these categories, but the DEA reaffirmed its belief today that crack cocaine is less addictive and dangerous with more medicinal benefits than cannabis.

What Does Schedule I Means

For starters, doctors cannot legally prescribe cannabis for physical and mental health disorders, and medical researchers have an extremely difficult time trying to study its therapeutic benefits. Schedule I drugs have “no medical value,” so the government rarely approves use of the actual substance for clinical research outside harm and risk studies. By moving cannabis to Schedule II, researchers would have an easier time doing the type of large-scale, double-blind studies into the potential benefits of cannabis. Herein lies the catch-22. How can you prove the plant has medical value if the government does not allow research because it claims cannabis has no medical value? Furthermore, how can the government claim the plant has no medical value if it doesn’t all research?

By failing to reschedule cannabis, state-legal medical cannabis businesses continue to suffer tax and banking issues. Even in states that legalized medical or recreational cannabis, most banks refuse to work with cannabis businesses because the plant is still wholly prohibited as a Schedule I substance. Likewise, IRS rule 280(e) prohibits such businesses from deducting legitimate business expenses.

The Fight to Reschedule Cannabis

The fight against Schedule I status goes back to the very introduction of the CSA. Assistant Secretary of Health Roger Egeberg put cannabis in the most-restricted category temporarily as the Shafer Commission (officially the National Commission on Marijuana and Drug Abuse) studied the plant. The group—chaired by Republican Governor Raymond Shafer and made up of politicians, doctors, attorneys, psychiatrists and college presidents—was expected to endorse the classification, but instead it called for an immediate end to cannabis prohibition in its "Marihuana, A Signal of Misunderstanding" report. President Nixon made veiled threats to Governor Shafer in the Oval Office asking him to change his findings, but when he didn’t, Nixon merely ignored the findings and found a racist bureaucrat who gladly issued his own report justifying the plant’s Schedule I status.

In 1972, NORML initiated the first rescheduling petition, but it took 14 years and numerous lawsuits before the DEA was ultimately forced to hold public hearings before a DEA administrative law judge. Two years later, Judge Francis L. Young ruled in favor of medical cannabis, stating "Marijuana has been accepted as capable of relieving distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record." Judge Young called cannabis “one of the safest therapeutically active substances” and recommended that “The Administrator transfer marijuana from Schedule I to Schedule II, to make it available as a legal medicine.” John Lawn, the DEA Administrator, overruled Judge Young’s determination, and in 1994, the D.C. Court of Appeals affirmed the Administrator’s legal power to do so, officially killing the 22-year-old petition.

Several more petitions and battles followed, all meeting the same fate. In fact, the drug agency previously considered petitions in 2001 and 2006, and in both cases, the schedule change was denied. Several attempts were made in Congress with no less a conservative than Newt Gingrich co-sponsoring a 1981 rescheduling bill. For decades, former Representative Barney Frank regularly introduced and voted for cannabis-related bills, once stating, “In a free society a large degree of human activity is none of the government’s business. We should make criminal what’s going to hurt other people, and other than that, we should leave it to people to make their own choices.” Legislative efforts to reschedule cannabis and end the 80-year prohibition also failed.

Several players were involved in the latest petition, including Senator Elizabeth Warren of Massachusetts, who sent a letter with seven other U.S. senators asking the government to look into the medical benefits of cannabis. In April, the DEA responded to the eight senators in a 25-page memo that said the Food and Drug Administration (FDA) finished a review of the medical evidence and forwarded its recommendation to the DEA, which must now issue a new ruling. The letter stated, “DEA understands the widespread interest in the prompt resolution to these petitions and hopes to release its determination in the first half of 2016.” That answer came today.

Why Deny a Schedule Change

In 2014, the Drug Policy Alliance released the 16-page report The DEA: Four Decades of Impeding and Rejecting Science that documented ways in which the agency actively sought to squash pro-medical cannabis findings. The authors wrote, “The case studies compiled in this report illustrate a decades-long pattern of behavior that demonstrates the agency's inability to exercise its responsibilities in a fair and impartial manner or to act in accord with the scientific evidence—often as determined by its Administrative Law Judges.” The organization argues that the DEA is not an impartial judge but an active prohibitionist willing to defy science, legislators, doctors, researchers and the democratic will of the American people. Indeed, the history of cannabis prohibition is a history of doctors battling prohibitionist bureaucrats.

The DEA has traditionally had poor leadership, with directors calling medical cannabis a joke as its agents engaged in sex orgies with hookers provided by cocaine cartels. If the DEA was willing to help the cocaine smugglers in exchange for bribes, why would it be so rigid regarding cannabis? The answer is, not surprisingly, money and power.

The DEA invests a significant amount of budget and manpower into enforcing cannabis prohibition. Right now, the agency employs about 16,000 people, and the budget is $3 billion per year, but the DEA loves to use forfeiture laws to confiscate money and assets from so-called “drug dealers,” something it can do without charging or convicting them. The idea behind the law was to empower the DEA to take down drug kingpins, but the agency will use it against anyone, even taking homes from parents whose underage kid sold $20 worth of drugs to a friend. Per the agency’s own numbers, the DEA took in $30 billion in cash and assets in 2014 alone using forfeiture, and the DEA has repeatedly defied congressional law to prohibit cannabis and bring in the bucks. If the government ended cannabis prohibition, the DEA could not justify its budget or many of these forfeitures, and many agents would likely be let go.

The government is hard pressed to claim that cannabis has no medical value when it has patents on medical applications and admits to therapeutic benefits on many of its websites. Sadly, the real reason for continuing prohibition is unelected bureaucrats wanting to hold onto their jobs, budgets and ability to seize money and assets without even filing charges. I mean, how else can a tiny town in Idaho afford a tank to fight cannabis? If the cartels are already providing the prostitutes, where else is the DEA going to spend the money?


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