DEA Aims to Reclassify Marijuana in Historic Shift
A recent Gallup poll revealed that over 70% of American adults support marijuana legalization, which is the highest level ever recorded by the polling firm and more than double its polling results in 2000. In 2022, President Joe Biden pardoned thousands of Americans federally convicted of simple marijuana possession and called on the federal government to review marijuana law. The U.S. Drug Enforcement Administration (DEA) conducted a review and, in April 2024, proposed a plan to reclassify marijuana from a Schedule I drug to a Schedule III drug.
Is Marijuana Legal in the U.S.?
Whether marijuana is legal in the U.S. is a complex subject due to the government structure of the country. On the federal level, cannabis is a scheduled drug, which means that it is a controlled substance and therefore generally illegal. While the federal government is free to define and enforce its own marijuana laws, it cannot force those laws on states due to the 10th Amendment. Each state establishes its own marijuana laws and determines how to enforce them. Federal marijuana law applies when you are:
- On federal land
- A federal employee
- Charged with a federal crime
- Traveling on the federal highway system
State law applies at all other times, but there remains a great deal of murkiness when it comes to banking. Many banks refuse cannabis-based businesses as clients for risk that deposits and other transactions could violate federal law.
According to Pennsylvania criminal defense attorneys, their state has legalized marijuana for medical use only, although the governor has called for the decriminalization of the possession of small amounts. There are 14 states in total that have legalized medical marijuana, and there are 24 states that have legalized it for both medical and recreational use. It is also legal in:
- Guam
- Puerto Rico
- Washington, D.C.
Can the DEA Legalize Marijuana?
No. Congress would need to pass a bill that would legalize and decriminalize marijuana at the federal level and outright allow for recreational use. What the DEA can do is:
- Relax the marijuana rules and regulations
- Acknowledge it has less potential for abuse
- Recognize the medical applications of marijuana
Experts warn that the immediate effect of the DEA rescheduling marijuana would likely be muted. That said, many agree that it is an important first step forward. Congress, for instance, is working on a SAFER Banking Act, but many experts expect them to wait until marijuana is no longer a Schedule I drug.
What Is Drug Scheduling?
The DEA classifies controlled substances, as determined by Congress, into five distinct categories, which it calls schedules. The organization determines rules and regulations for schedules rather than individual drugs. This streamlines the overwhelming task of making rules for all controlled substances in the U.S.
- Schedule I: a high potential for abuse and no currently accepted medical use
- Schedule II: accepted medical uses but potential for severe dependence
- Schedule III: low to moderate potential for physical and psychological dependence
- Schedule IV: low risk for both abuse and dependence
- Schedule V: generally reserved for products that contain small amounts of a controlled substance
A Deeper Look at Schedule I
Many have long argued that marijuana has no place being on Schedule I. Even people who do not want marijuana legalized generally agree. Other drugs in this schedule include:
- LSD
- Heroin
- Peyote
- Ecstasy
- Methaqualone
It is also illuminating to consider some of the drugs in Schedule II. These are drugs that the DEA currently deems to be less dangerous than marijuana:
- Cocaine
- Fentanyl
- Oxycodone
- Methamphetamine
- Adderall and Ritalin
A Deeper Look at Schedule III
Many experts agree with the DEA that Schedule III is a better spot for marijuana. This schedule includes:
- Ketamine
- Testosterone
- Anabolic steroids
- Aspirin with codeine
The Research Factor
People both for and against marijuana legalization agree that there should be more research. The primary reason that there is such a dearth of research on cannabis is because it is a Schedule I drug. It is very difficult to get approval for research for Schedule I drugs through the DEA. The time and money required is simply impractical for many universities and smaller research labs. Once marijuana becomes a Schedule III drug, the costs and other roadblocks researchers currently face would go away.
What Happens Next?
Congress has the power to make marijuana a controlled substance or not. While it’s a controlled substance, the DEA has the power to determine marijuana’s schedule. It could move it from Schedule I all the way to Schedule V. It has proposed Schedule III based on its own review and a recommendation from the Health and Human Services Department (HHS). The DEA does not have final say. It sends the official proposal to the White House Office of Management and Budget (OMB) for review. The OMB could reject it outright or request revision, but it is expected to sign off on it.
The DEA would then publish the ruling in the Federal Register. This would initiate the formal rulemaking process in Congress per the Controlled Substances Act. If Congress passes it, the change becomes official but could be appealed. A previous attempt to reschedule marijuana was denied by a federal judge citing U.S. obligations to the international 1961 Single Convention on Narcotic Drugs treaty. This is not expected to be a hurdle again but potentially could be.
Cannabis Administration and Opportunity Act
The Cannabis Administration and Opportunity Act is a bill in Congress that would fully decriminalize marijuana at the federal level by removing it from the Controlled Substances Act. Congress could sign it into law without rescheduling marijuana first. However, there is an expectation of a domino effect. Rescheduling will occur. The SAFER Banking Act will become law. Then, possibly, federal decriminalization would occur. If that were to happen, it would:
- Reduce tax burdens on cannabis-based business
- Legalize marijuana on federal property and highways
- Eliminate potential federal violations through banking
The federal government could still ban it on particular properties and forbid it for its employees. However, people would also still be fully subject to state law. If in a state where marijuana remained fully criminalized, it does not matter that it would be decriminalized at the federal level.
What Would Happen to Preexisting Federal Charges?
When federal law changes, it does not retroactively apply to those previously charged and found guilty. Appeals may be possible. It would generally require the then-President to pardon those individuals. If the change occurs during the Biden administration, those pardons seem likely based on past actions and statements. If it happens afterwards, it would depend on who was president at that time.
Local Representation for Marijuana Charges
Bauer, Scanlon & Wigginton is a law firm in Pennsylvania with three seasoned criminal defense attorneys who have many years of combined experience. We have a deep understanding of the current landscape of marijuana charges. If you or a loved one has been charged with marijuana use or possession, we would like to help. To discuss your case with a Pennsylvania criminal defense attorney, call our Media office at 610-590-5092, or contact us online.