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Mon Feb 24, 2014, 01:31 PM

Kleiman Admits Marijuana Rescheduling Would Help States

Kleiman, the author of the article further down this page, was an advisor for Washington State's marijuana laws and is a professor of Public Policy at UCLA.

Mark Kleiman continues to insist that I am “talking through [my] hat” on the subject of rescheduling marijuana, but the reason he gives for saying so has changed. At first he claimed I had exaggerated the impact of rescheduling, which was weird, since the post he was criticizing said nothing about the impact of rescheduling, focusing instead on the question of whether the Obama administration has the authority to reclassify marijuana without new legislation from Congress. As Kleiman conceded, the answer to that question is yes, although President Obama suggested otherwise in a CNN interview. In any case, Kleiman was clearly wrong to say that the “practical effect” of moving marijuana out of Schedule I would be “identically zero”—or, as he put it on Twitter, that “rescheduling does nothing.” He has since retreated from that position without acknowledging that he has ceded any ground. Now he says rescheduling marijuana would be “mostly pointless” and/or that its effects would be “ mostly symbolic.” These clams are more defensible, although advocates of rescheduling might nevertheless take issue with them (especially the first one).

...Which brings us to the letter that Rep. Earl Blumenauer (D-Ore.) and 17 other members of Congress sent the president last week. Blumenauer et al. argue that marijuana does not meet the criteria for Schedule I and urge Obama to “instruct Attorney General Holder to delist or classify marijuana in a more appropriate way, at the very least eliminating it from Schedule I or II.” Kleiman says these legislators do not understand the law either, but it is not clear why he says that. “It’s not as simple as someone saying, ‘Gee, I’d like to reschedule cannabis this morning,’” Kleiman writes, since the CSA lays out a process to follow, including consultation with the Department of Health and Human Services. That is true, but I do not see where Blumenauer et al. claim otherwise. Although rescheduling would not happen instantly, even beginning the process could help advance the debate about marijuana prohibition by calling attention to the questionable distinctions drawn by our drug laws.

Kleiman emphasizes that the attorney general’s rescheduling power is “not arbitrary.” That’s true in the sense that his power is constrained by the statute in certain ways. For example, the CSA’s reference to treaty obligations seems to preclude removing marijuana from the schedules entirely. But as Alex Kreit notes, the CSA gives the attorney general (and therefore the DEA) a great deal of discretion in interpreting and applying the scheduling criteria, since it leaves key terms such as “potential for abuse” and “accepted medical use” undefined. The DEA has bent over backward to justify keeping marijuana on Schedule I, and nothing in the statute requires it to do that.


The current impasse is because of an entrenched bureaucracy that has views akin to creationists in its denial of reality. To wit:

The DEA says marijuana meets the second criterion—no currently accepted medical use—not because the drug is ineffective at treating symptoms such as nausea, pain, and muscle spasms (in fact, the Obama administration concedes the medical utility of cannabinoids) but because such uses have not gained wide enough acceptance within the medical community. Given the subjectivity of that judgment, it amounts to saying that marijuana has no accepted medical use because the DEA deems medical use of marijuana unaccceptable. The agency likewise does not accept that marijuana can be used safely, although it obviously can, as Obama conceded when he observed that alcohol is more dangerous.

The DEA clearly is bending over backward to keep marijuana on Schedule I, and nothing in the CSA requires it to do that. It could easily apply the CSA's criteria in a way that would make marijuana less restricted, and the decision not to do so is ultimately Obama's. He is the one who appointed the current DEA administrator, a hardline holdover from the Bush administration who is so committed to prohibitionist orthodoxy that she recoils in horror at the thought of a hemp flag flying over the Capitol and could not restrain herself from openly criticizing Obama, notionally her boss, for his scientifically uncontroversial statement about the relative hazards of marijuana and alcohol. He is the one who, despite his avowed commitment to sound science and his own statements to the contrary, allows the DEA to insist marijuana is so dangerous that it must be more tightly restricted than cocaine, morphine, oxycodone, and methamphetamine.

"It's very unfortunate that President Obama appears to want to pass the buck to Congress when it comes to marijuana laws," says Tom Angell, chairman of Marijuana Majority. "If the president truly believes what he says about marijuana, he has a moral imperative to make the law match up with his views and the views of the majority of the American people without delay. He should initiate the long overdue rescheduling of marijuana today."


Yet there is another way rescheduling could be accomplished - by directing the DEA to an interpretation of policy that implements rescheduling of marijuana to, ideally (if it's going to be scheduled at all) to Schedule V, or the least dangerous of substances within the Controlled Substances Act.

Alex Kreit, a professor at Thomas Jefferson School of Law in San Diego who studies drug policy, notes that the CSA leaves undefined phrases on which scheduling hinges. The DEA therefore "has enjoyed incredibly broad discretion to interpret and define 'potential for abuse' and other scheduling criteria," Kreit writes on the Marijuana Law, Policy & Reform blog. Just as it could adopt a less demanding definition of "accepted medical use," the DEA could take a narrower view of "abuse," which it equates with any nonmedical use. By that standard, marijuana, by far the most popular illegal drug, does indeed have a high potential for abuse. But that judgment seems peculiar if abuse is defined as problematic use, in which case potential for abuse might be measured by the percentage of users who become addicted or suffer serious harm.

In truth, as Lester Grinspoon observes, marijuana does not fit any of the schedules very well. It is not the sort of medicine the FDA is used to approving. But it clearly can be used safely, as Obama conceded when he noted that it is less dangerous than alcohol. Back in 1988, when he urged the DEA to reschedule marijuana, Administrative Law Judge Francis Young called it "one of the safest therapeutically active substances known to man." And while marijuana surely can be abused (what can't?), its potential for abuse seems lower than that of many pharmaceuticals, not to mention alcohol and tobacco, which the CSA specifically excludes from its schedules.

In light of these inconsistencies, could the DEA take marijuana off of the CSA's schedules altogether? Probably not. "I think it is very unlikely that the attorney general could remove marijuana from the schedules entirely," Kreit says. Although the CSA gives the attorney general the power to "remove a drug or other substance entirely from the schedules," it also says that "if control is required by United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate."


This article notes Republicans are attacking Obama and Holder for "schizophrenic" actions related to marijuana, including Obama's claim that marijuana is no more dangerous than alcohol, and Holder's statement that states can work out their laws without federal interference as long as certain points of the law (export, association with illegal drug organizations, zoning laws, etc. are enforced.)

As a matter of law, Section 873 of the Controlled Substances Act orders the attorney general to "cooperate with local, State, tribal and Federal agencies concerning traffic in controlled substances and in suppressing the abuse of controlled substances." Most states have drug laws that track federal prohibitions. But the voters in Washington state and Colorado chose regulation over prohibition as a means of dealing with cannabis abuse; if the state regulatory systems succeed, there will be less drug abuse than if they fail.

A straightforward reading of the law would therefore seem to require the attorney general to cooperate with those state efforts rather than trying to disrupt them, if in his judgment doing so promotes the purposes of the law in controlling drug trafficking and drug abuse. It is Holder's critics who seem to be selective about which laws they want to pay attention to.

As a matter of fact, federal drug law enforcement is a relatively small part of the national drug enforcement effort; about 80 percent of the 500,000 drug offenders behind bars in the U.S. are in state prisons and local jails. The Drug Enforcement Administration has fewer than 5,000 agents worldwide; Colorado and Washington state between them have more than 22,000 state and local police.

The Justice Department could easily have shut down the licensed growers and sellers in Washington and Colorado, but it would simply not have had the capacity to control strictly illegal production in those states without the help of state and local police. Letting the reasonably regulated Colorado and Washington systems operate while going after participants in California's virtually unregulated "medical marijuana" business creates the right incentives for state officials and industry participants; if you don't want federal attention, keep things under control.


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Reply Kleiman Admits Marijuana Rescheduling Would Help States (Original post)
RainDog Feb 2014 OP
duhneece Feb 2014 #1
RainDog Feb 2014 #2
RainDog Feb 2014 #3

Response to RainDog (Original post)

Mon Feb 24, 2014, 02:40 PM

1. One of the many changes in criminal justice we need to make

This would be one huge, reasonable, rational one. Every 12 yr old knows that meth is more dangerous than marijuana.

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Response to duhneece (Reply #1)

Mon Feb 24, 2014, 03:53 PM

2. This is something that could be done immediately

to also help with those who have epilepsy - the Epilepsy Foundation has called for the DEA to stop hindering research - and has called for doctors to be able to recommend marijuana to their patients.

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Response to RainDog (Reply #2)

Mon Feb 24, 2014, 09:27 PM

3. evening kick n/t

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