Six former Drug Enforcement Administration heads (DEA) and five former White House Drug Czars sent a letter to Attorney General and current DEA Administrator, expressing opposition to the recommendation of the federal health agency to reschedule cannabis. The letter also included a questionable statement about the relationship between criminal penalties and drug schedules, which may have exaggerated the impact of incremental reform.
The letter sent on Thursday to the Attorney General Merrick G. Garland and DEA Administrator Anne Milgram states that moving marijuana to Schedule III as advised by U.S. Department of Health and Human Services would “supersize the industry” by providing tax relief and normalizing the market.
The report also claimed that “rescheduling cannabis, and thereby reducing criminal sanctions for marijuana trafficking” removes a crucial tool that federal agents use to prosecute cartels. But legal experts dispute this claim, pointing to the fact that the penalties for trafficking in marijuana (and other drugs) is not directly linked to the Controlled Substances Act’s (CSA) scheduling status.
The penalties imposed for cannabis trafficking vary according to weight. Trafficking less than 50 kilograms of cannabis is punishable with a mandatory minimum five-year prison sentence and a maximum fine of $250,000 for the first offense. Trafficking more than 1,000 kilograms results in a minimum ten-year sentence. The penalties are specific to marijuana. So, the idea that rescheduling will automatically reduce them is questionable.
“Unlike other substances where you change the schedule and the criminal penalties change accordingly, for certain certain substances–marijuana chiefly among them–that is not the case,” Shane Pennington, an attorney who specializes in federal drug policy and litigation against DEA, told Marijuana Moment in a phone interview on Friday. DEA “just said that, in relation to marijuana, these are the penalties.”
He said that the former heads of federal drug agencies “just aren’t correct about this” in their letter.
Kevin Sabet is the president of Smart Approaches to Marijuana, the prohibitionist organization that posted this letter. He has stated repeatedly that it is a myth that the criminal penalties for federal drug crimes correspond to the drug’s scheduling status.
Please be reminded:
The drug schedule does not correspond to the penalties.
Please accept my sincere thanks.
Kevin Sabet April 1, 2020 HTML0
Repeat, students:
Schedules are not the same as penalties
Schedules are not the same as penalties
Schedules are not the same as penaltiesKevin Sabet 27 July 2017
Sabet criticized even a congressman at one point for allegedly misunderstanding the disconnect between penalties and scheduling status.
Does Rep Connelly understand what scheduling is? There is no legal penalty. Cocaine is S-2 due to its limited medical use. Marinol is S-3.
Kevin Sabet 20 June 2014 HTML0
Other scholars, however, have argued that marijuana rescheduling could result in lower criminal penalties under CSA. There’s also the general fact that judges and prosecutors are more likely, even though they’re not legally obligated, to reduce penalties in the case of a federal rescheduling.
Marijuana Moment contacted the DEA to get clarification. A representative referred all questions regarding criminal penalties and prosecutions, to the Justice Department. The Justice Department did not reply to a comment request by the publication date.
The former DEA chiefs and White House drug czars continue to state that moving marijuana to Schedule III would “supersize the cannabis industry” in the United States, by allowing it to evade IRS Section 280E while deducting business expenses.
They said that the marijuana industry would benefit from a dramatic increase in its commercialization abilities.
About a year ago President Joe Biden led the administrative review of marijuana scheduling, and HHS spent eleven months conducting a scientific evaluation that concluded that cannabis was to be moved into Schedule III under the CSA. As the scientific findings of the health agency are binding, the DEA can choose to ignore their recommendation.
Former DEA administrators, and former directors of the White House Office of National Drug Control Policy(ONDCP), said in a letter that DEA must do exactly that: ignore scientific conclusions of HHS, and refuse to move forward with a Schedule III reclassification.
They expressed “grave concern” over the reform. “There has not been any evidence that marijuana should be rescheduled” in the past seven years, since the federal government considered the last petition for rescheduling.
The FDA has not approved raw marijuana for medical purposes because there are no published double-blind studies that show its safety and efficacy. This is something that other health officials, such as the Director of the National Institute on Drug Abuse, Nora Volkow, have criticized.
The letter went on to discuss various prohibitionist talking points, such as the increased THC content in cannabis products and the possibility of misuse. It also discussed the limitations that legalization has when it comes to reducing the illicit market.
The former officials stated that they understood that moving marijuana from Schedule III to Schedule III did not allow for its prescription or legalization. The change will benefit marijuana companies, who can now deduct their business expenses and bypass IRS Section 280E, thereby boosting their profits. This will lead to more commercialization and advertising.
IRS Code 280E prohibits businesses from deducting federal taxes if they market a Schedule I controlled substance or Schedule II controlled substance. The existing industry has a much higher effective tax rate compared to businesses in other industries.
During a 2016 administrative review of cannabis scheduling during the Obama administration, HHS concluded – and DEA agreed – that cannabis had no accepted medical value at this time. It also has a high potential for abuse. Former DEA and ONDCP officials said “nothing changed since then” to make any new conclusions.
Since 2016, numerous studies have linked cannabis with positive health outcomes. More states are legalizing cannabis for medical purposes for a wide range of conditions.
The officials also cited the research that showed marijuana was “more addictive” than other Schedule I drugs such as LSD, GHB and khat, but they didn’t suggest those substances be rescheduled. This is despite FDA designating MDMA or ecstasy as a breakthrough drug that many expect to get federal approval for as a medicine as soon as next year.
The letter states that “advocates for rescheduling cannabis argue that it has a medical value.” It also adds that, according to a NIDA factsheet, researchers “haven’t done enough large-scale trials to show that the benefits (as opposed its cannabinoid components) outweigh the risks of the marijuana plant in the patients it is meant to treat.”
In 2021, Volkow said that she has not seen any evidence that occasional marijuana use by adults is harmful. In 2021, Volkow said that there is no evidence to support that adults who use marijuana occasionally are at risk. She has said, however, that criminalizing all drug use is a barrier to addiction treatment and that research is hindered by it. The drug war created a “structurally racist system” where Black people were treated “worse than other races.
Former drug officials stated in their letter that “if certain marijuana compounds are proven to have medical benefits, few would object to FDA-approved marijuana derived medications,” using the federal approval of synthetic THC medication Dronabinol for an example.
The letter states that “also, advocates for this shift cite increased capability for research about marijuana,” contesting the description by asserting drug development is often private administered and is an expensive process. This “may represent one of the reasons more marijuana-based medicines do not exist versus where the drugs sits under the Controlled Substances Act.”
The National Institutes of Health called for the continuation of research into the potential medical benefits of marijuana and the dangers of today’s high-potency products.
The letter concluded, “We urge that you follow the science showing marijuana’s high addiction potential and its lack medical use as well as impact of rescheduling on law enforcement and ability to prosecute drugs trafficking organizations.”
The DEA and ONDCP directors from multiple administrations, including presidents of both major political parties, are among the signatories.
Supporters of cannabis reform and advocates of legislation have marked the anniversary of Biden’s pardon of marijuana and his scheduling directive with a call for him to do more, including by extending the relief of his pardon, and by explicitly supporting federal legalization.
Two GOP senators have recently introduced new legislation that would prohibit federal agencies from rescheduling marijuana without the tacit approval of Congress.
A coalition of Republican Congressmen is also urging DEA “reject” top federal health agency’s recommendation to reschedule cannabis, and instead keep it under the most restrictive category in the CSA.
Below, read the letters sent by former DEA administrators to White House drug czars about marijuana rescheduling.
Where Donald Trump, the presidential candidate, stands on marijuana
Photo by Chris Wallis // Side Pocket Images.
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