The White House can decriminalize medical marijuana in one easy step

December 11, 2012

Gary Parrish smokes marijuana just after midnight  Dec. 6, at the Space Needle in Seattle. (Ted S. Warren/Associated Press)

As of Monday, marijuana is legal in the state of Colorado. Governor John Hickenlooper has signed an official proclamation making Amendment 64, the voter-passed amendment that legalizes possession of up to an ounce of marijuana, part of the state's Constitution.

That sets up a confrontation between the state and the federal government, given that marijuana possession is still a federal crime.

In theory, the Drug Enforcement Agency could try to arrest everyone buying and selling pot in Colorado and Washington, which also legalized the substance last month. But in practice, there just aren't enough DEA agents to staff an operation of that scale. It would be, in the words of UCLA drug policy expert Mark Kleiman, "an exercise in shoveling sand against the tide." So a likelier outcome, as Sarah Kliff has reported, is that the federal government will take a lighter touch. Some dispensaries might get busted up, but the drug would be left alone.

But what these discussions often miss is that there's a way for the Obama administration to decriminalize medical marijuana without even involving Congress. The Controlled Substances Act, the 1970 law that governs federal drug policy, is based on a system known as "scheduling," in which drugs are sorted into categories based on their potential for abuse and usefulness in medicine. Marijuana, along with the likes of heroin and DMT, is a schedule I drug, meaning it is judged to have a high potential for abuse and little medical value. By contrast, cocaine, oxycontin and PCP are all schedule II drugs, and can be prescribed.

Rulings on scheduling, however, are not permanent. Upon petition from private citizens, the DEA can initiate a process that results in a drug being rescheduled. In effect, that means that the attorney general can direct the DEA to act on a petition for marijuana rescheduling. In effect, Eric Holder could direct the agency to remove marijuana from the list of scheduled drugs, decriminalizing it for medical use federally. That doesn't help recreational users, but it would let medicinal users and suppliers breathe a lot easier. While states could still ban it for medicinal use, those that opt not to would no longer run afoul of federal law.

But rescheduling is easier proposed than done, of course. Americans for Safe Access, an advocacy group for medical marijuana patients and providers, filed a petition in 2002 to classify marijuana as a schedule III, IV or V drug. That didn't even get a response until 2011, when ASA sued for "unreasonable delay." The DEA finally ruled against, causing ASA to appeal from administrative courts to the D.C. Circuit Court of Appeals, which isconsidering the case.

ASA's Kris Hermes tells me that even if the Circuit Court doesn't force rescheduling, it could force the DEA to hold an "evidentiary hearing" to determine whether marijuana is safe for medicinal use. "There's a mountain of evidence" that it has medicinal value, he insists. That could cast the overall policy in a bad light, even if it fails to change it.

Of course, all this would be short-circuited if the Obama administration were to stop fighting the suit and reschedule on its own. Again, that doesn't mean much for recreational users in Colorado and Washington, who'd still be guilty of using a controlled substance without a prescription. Nor does it help those in states that still ban medical marijuana. But it would be a huge federal move toward laxer drug policy, and it's one that can be accomplished without any help from Congress.

Update - Steve Fox at the Marijuana Policy Project gave me a call and fleshed out a bit more how rescheduling would work. The DEA would have to license a certain number of manufacturers to produce pharmaceutical marijuana, and only dispensaries that obtain proper licensing will be able to distribute it. Those without that licensing would run afoul of the Federal Food, Drug, and Cosmetic Act. So there'd still be delays after rescheduling before medical marijuana became fully legal, but the process would be well underway.

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Ezra Klein · December 11, 2012