29 Former Federal Prosecutors Urge Biden Administration To Leave Marijuana In Schedule I

In a letter sent to the heads of the Department of Justice (DOJ) and Drug Enforcement Administration (DEA) this week, 29 former U.S. attorneys are urging the Biden administration to leave cannabis in Schedule I of the Controlled Substances Act (CSA), arguing that “marijuana has only become more dangerous, potent, and addictive” since the government last reviewed its scheduling in 2016.

The correspondence comes as DEA continues its review of marijuana’s scheduling after the U.S. Department of Health and Human Services (HHS) recommended in August that the substance be moved, reportedly to Schedule III.

“Almost no one has benefitted from legal weed,” the former federal prosecutors claim in the new letter, “but there is one group coming out on top: drug cartels. Many states have enacted home-grow marijuana laws, which led to cartels growing marijuana in the United States to cut trafficking costs.”

The letter, to Attorney General Merrick Garland and DEA Administrator Anne Milgram, does not cite a source for that claim. Most states limit legal home cultivation for cannabis to less than a dozen plants and outlaw unlicensed commercial sales.

One of the main reasons for marijuana’s current Schedule I status is the government’s assertion that the plant has no recognized medical use—an issue reform advocates have challenged as more than three-quarters of all U.S. states have adopted medical cannabis laws.

The former prosecutors, however, assert that data “supports the determination that marijuana does not have an accepted medical use or safe use under medical supervision,” alluding to a June 2023 review that the former U.S. attorneys said concluded that “cannabis-based medicines increased adverse events related to the central nervous system.”

“We urge you to consider the scientific research that demonstrates marijuana’s high addictive potential, its lack of safe medical use, and the impact rescheduling will have on prosecuting drug cartels when conducting your scheduling review,” the letter says.

The former U.S. attorneys also warned that one effect of rescheduling to Schedule III is that cannabis companies would no longer be subject to Internal Revenue Service (IRS) rule 280E, which prevents standard business deductions for businesses that work with Schedule I substances.

“This means marijuana corporations would be able to deduct expenses for advertisements appealing to youth and the sale of kid-friendly marijuana gummies,” the letter claims.

Most states with legal marijuana already prohibit advertising to minors, and many have passed regulations intended to limit the appeal of marijuana products to children, for example forbidding certain shapes and packaging designs.

Authors pointed to decades of adherence to drug-war thinking as evidence that prohibition should continue. “For fifty years,” they wrote, “both Democratic and Republican Administrations have followed the science and affirmed that marijuana should not be rescheduled.”

They also quoted a factsheet from the National Institute on Drug Abuse (NIDA) saying that researchers “haven’t conducted enough large-scale clinical trials to show that the benefits of the marijuana plant (as opposed to its cannabinoid ingredients) outweigh its risks in patients.”

For years, however, NIDA Director Nora Volkow has told lawmakers and other federal officials that marijuana’s Schedule I status is itself a barrier to research. More recently, Volkow has acknowledged that she personally hesitates to study marijuana because of its Schedule I designation, as do other researchers, she said.

Volkow has raised similar issues with research barriers around psilocybin and other psychedelics in Schedule I that are increasingly believed to offer promise in mental health treatment and other care.

The NIDA director has also said that there’s “no evidence” that occasional marijuana use is harmful for adults.

Among other claims in the new letter sent this week, the former U.S. attorneys said that 30 percent of marijuana users become addicted and that “marijuana’s addiction rate in Washington state after legalization was 21 percent.”

“We can’t afford to create a new Big Tobacco that targets kids,” the letter says. “Placing marijuana in Schedule III will allow the industry’s commercialization ability to explode.”

The anti-cannabis advocacy group Smart Approaches to Marijuana (SAM), first posted the letter on social media Thursday morning. In a statement, SAM President Kevin Sabet said, “We know today’s high-potency THC drugs are associated with lower IQ, psychosis, depression, suicidality, motor impairment, psychosis and schizophrenia, among other consequences. Rescheduling marijuana will put the commercial drug industry on steroids and make it even worse for those suffering from addiction.”

Sabet also said on Thursday that he was “proud” that his organization helped organize the letter with federal prosecutors from bipartisan administrations. But that bipartisanship might be overstated, as the vast majority of signatories were appointed by Republican presidents, with limited examples of administrative overlap, according to an analysis conducted by National Cannabis Roundtable (NCR) Policy Director David Mangone.

Despite the furor over the ongoing rescheduling review, outside observers still know little about HHS’s justification for its recommendation that cannabis be moved to Schedule III. While the agency sent hundreds of pages of explanation to DEA as part of its rescheduling recommendation, those documents have so far only been released in highly redacted form, with little to no indication of the federal health agency’s findings related to possible medical benefits, addictive potential or any other aspect of the policy decision.

The Congressional Research Service (CRS) recently concluded that it was “likely” that DEA would follow the HHS recommendation based on past precedent, but DEA has final jurisdiction over the CSA and reserves the right to disregard the health agency’s advice.

Earlier this month, the governors of six U.S. states—Colorado, Illinois, New York, New Jersey, Maryland and Louisiana—sent a letter to President Joe Biden (D) urging the administration to reschedule marijuana by the end of this year.

“Rescheduling cannabis aligns with a safe, regulated product that Americans can trust,” says the governors’ letter, which points to a poll that found 88 percent of Americans support legalization for medical or recreational use. “As governors, we might disagree about whether recreational cannabis legalization or even cannabis use is a net positive, but we agree that the cannabis industry is here to stay, the states have created strong regulations, and supporting the state-regulated marketplace is essential for the safety of the American people.”

The office of Colorado Gov. Jared Polis (D), who led the group letter, said rescheduling “will not only alleviate the financial and safety concerns for businesses but allow a thriving industry to play a full role in the American business environment.”

One of the first state officials to react to the HHS rescheduling recommendation, Polis told Biden in a letter in September that while he expects DEA will “expeditiously” complete its review and move marijuana to Schedule III, the policy change must be coupled with further administrative and congressional action to promote health, safety and economic growth.

Meanwhile, six former DEA heads and five former White House drug czars sent a letter to the attorney general and current DEA administrator voicing opposition to the top federal health agency’s recommendation to reschedule marijuana. They also made a questionable claim about the relationship between drug schedules and criminal penalties in a way that could exaggerate the potential impact of the incremental reform.

Signatories include DEA and Office of National Drug Control Policy heads under multiple administrations led by presidents of both major parties.

In October, Advocates and lawmakers who support cannabis reform marked the one-year anniversary of Biden’s mass marijuana pardon and scheduling directive this month by calling on him to do more—including by expanding the scope of relief that his pardon had and by expressly supporting federal legalization.

Two GOP senators, including the lead Republican sponsor of a marijuana banking bill that cleared a key committee last month, recently filed new legislation to prevent federal agencies from rescheduling cannabis without tacit approval from Congress.

A coalition of 14 Republican congressional lawmakers, meanwhile, is urging DEA to “reject” the top federal health agency’s recommendation to reschedule marijuana and instead keep it in the most restrictive category under the CSA.

Read the former U.S. attorneys’ full letter to Garland and Milgram below:

Photo courtesy of Philip Steffan.