President Biden Gives the Green Light for Significant Marijuana Reform

October 10, 2022By Kalie E. Richardson

On October 6, President Joe Biden issued a brief but sweeping three-step statement towards reforming Federal marijuana law.  The president’s first step was a pardon of all prior federal offenses of simple marijuana possession and a direction to the Attorney General to develop an administrative process to issue certificates of pardon to eligible individuals.  Possession by an individual of a small amount of a drug for personal use without intent to distribute constitutes “simple possession.”  It is important to note that the president’s pardon is limited to simple possession and he made clear that “important limitations on [marijuana] trafficking, marketing and underage-sales should stay in place.”  The president’s pardon is estimated to affect over 6,500 persons with prior federal convictions and thousands of others convicted under District of Columbia law.

Because the vast majority of marijuana-related convictions are at the state level, President Biden’s second step encouraged governors to follow his lead and issue similar pardons.  The President cannot compel governors to act, but their issuing such pardons would be largely consistent with the wave of decriminalization and authorized use of marijuana that has occurred across the country in recent years.  As of earlier this year, 37 states and the District of Columbia have legalized marijuana for medical use and 19 states and the District of Columbia have legalized cannabis for adult recreational use.  Additionally, marijuana legalization measures are on the ballots for the upcoming midterm elections in Arkansas, Maryland, MissouriNorth Dakota, and South Dakota.  We also note there are states where marijuana remains the equivalent of a schedule I controlled substance.

Separate and apart from the loosening of marijuana restrictions by these states, marijuana remains a schedule I controlled substance under federal law.  In his third step, President Biden asked Secretary of Health and Human Services (“HHS”) Xavier Becerra and Attorney General Merrick Garland to “initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.”  The Controlled Substance Act (“CSA”) authorizes the Attorney General to reschedule (or deschedule) substances of abuse after consideration of the drug’s potential for abuse and dependence as well as its acceptance for medical use for treatment in the United States.  Before the Attorney General and the Drug Enforcement Administration (“DEA”) can initiate proceedings to reschedule a substance, they must request a scientific and medical evaluation of the substance from HHS.  HHS has undertaken scientific and medical evaluations of marijuana in recent years.  In 2016, DEA denied two petitions — originally filed in 2011 and 2009— after HHS concluded that marijuana continued to meet schedule I criteria by having a high potential for abuse, no accepted medical use in the United States, and lacking an acceptable level of safety for use even under medical supervision.

The CSA requires DEA to seek an opinion from HHS and determine whether the “scheduling recommendation, scientific and medical evaluation, and ‘all other relevant data’ constitute substantial evidence that the drug should be rescheduled as proposed.”  HHS’ recommendations are binding on DEA as to scientific and medical matters.  This “eight factor analysis” requires consideration of:

  1. The drug’s actual or relative potential for abuse;
  2. The drug’s scientific evidence of its pharmacologic effect, if known;
  3. The state of current scientific knowledge regarding the drug;
  4. The drug’s history and current pattern of abuse;
  5. The drug’s scope, duration, and significance of abuse;
  6. The risk, if any, to public health;
  7. The drug’s psychic or physiological dependence liability; and
  8. Whether the drug is an immediate precursor of a controlled substance.

Again, HHS concluded in 2016 upon considering the eight factors, that marijuana met the scheduling criteria for remaining in schedule I because marijuana does not have a currently accepted medical use in the United States.  While DEA also made specific findings relative to these factors, in effect, DEA’s hands were tied because without a finding from HHS that marijuana has an accepted medical use, DEA had to deny any petition to reschedule the drug.  In summary, the key to any future rescheduling of marijuana remains a finding, specifically by HHS, and supported by DEA, that marijuana does have an accepted medical use in the United States.

President Biden’s statement and requests are no doubt significant.  The federal pardon will have a near-term effect on the lives of those who have been charged and convicted with simple possession of marijuana.  However, only time will tell whether governors will follow President Biden’s lead and issue similar pardons for offenses under state law.  The rescheduling or descheduling of marijuana would be the most monumental and President Biden has clearly signaled his support of this goal.  This is not something we expect will occur quickly.