John Hudak is senior fellow in governance studies at the Brookings Institution and the author of the forthcoming book “Marijuana: A Short History.”
The Controlled Substances Act is not outdated. It is a law structured in a way meant to protect science, medicine, patients and the public. It is not absolutist. It has an administrative structure built into it to control for mistakes, new scientific discoveries and even evolving public or medical understanding.
Today’s federal drug laws appear to have done a disservice to marijuana, locking it into an inappropriate schedule where it is banned outright. But in reality, negative drug policy around marijuana is not the fault of the CSA. Instead, a variety of other factors — mainly attributed to biased lawmakers — have hindered the law from working properly when it comes to the drug.
The initial placement of marijuana in Schedule I, the government’s most restrictive category of drugs, can easily be considered a mistake — though perhaps “mistake” is too meek of a term, particularly in the face of alcohol and tobacco being left off the schedules. In fact, marijuana’s strict scheduling emerges from the cultural and racial apathy felt by Richard Nixon, the activist president who signed the Controlled Substances Act into law. Nixon’s aides suggested the war on marijuana was racially motivated, and Oval Office tapes highlight his contempt for the counterculture movement as well as racial minorities.
The tapes also make it clear that Nixon wanted to link marijuana use and its negative effects to two groups who he held in contempt: African Americans and hippies. Nixon even appointed a commission to look into the ills of marijuana — the Shafer Commission. When the group issued its report entitled, “Marihuana: A Signal of Misunderstanding,” which explained that marijuana was not as dangerous or addictive as it had widely been perceived, Nixon called his handpicked chairman, former Republican Pennsylvania governor Ray Shafer, into the Oval Office to be chastised.
So, while marijuana’s placement in Schedule I was not a result of deep scientific expertise, that does not mean that the CSA is to blame for the continuing policy problems. The CSA has avenues to correct error or compensate for new information or data. Rescheduling is one such remedy. Under administrative rescheduling, the attorney general asks the Drug Enforcement Administration and the Food and Drug Administration to examine whether a substance is properly scheduled. The attorney general takes those recommendations and ultimately makes a determination. If a substance is determined to be improperly scheduled, a rulemaking process commences that ultimately reschedules the substance.
That the rescheduling process exists means that the architects of the CSA understood the need for legal flexibility and thought that avenues for revision should be built into the law. However, due to cultural biases and stigma that have been cemented into society, science and bureaucracy, those avenues have largely failed marijuana. The nearly century-long institutional effort by the U.S. government to paint marijuana as anathema to society, in all forms and under all circumstances, has been devastatingly successful.
How has that effort played out? Beyond promoting propaganda that stoked public, congressional and media fears of marijuana, the government also decided that it was of greater interest to fund research that focused on marijuana’s addictive properties rather than its possible medical efficacy. The government stifled the ability of the scientific community to build knowledge and expertise in as robust a way as research has explored the efficacy of other controlled substances, even as research came to discover the endocannabinoid system and developed an understanding of how cannabinoids impacted certain human systems and cellular processes.
The federal government set up a DEA-mandated monopoly through the National Institutes on Drug Abuse for the growth of research grade marijuana — not for all Schedule I drugs, just marijuana. For decades, the supply from that monopoly was often insufficient to meet clinical researchers’ needs. Until recently, all marijuana research proposals needed to go through an additional, unique review by the Public Health Service that added a bureaucratic layer, hindering research.
So what was the result? Decades of federal policies — entirely separate from the CSA — limited the ability of the scientific community to produce the type of research that could demonstrate that medical value. In order for marijuana to be rescheduled to Schedule II, it requires demonstration of an “accepted medical use.” Yet government policy has effectively created a “cannabis Catch-22” for research, ensuring that regardless of reality, marijuana will remain Schedule I.
The CSA hasn’t failed marijuana. Instead, the federal government has prevented the CSA from working properly when it comes to marijuana. If you want marijuana rescheduled, don’t blame the law; blame the hundreds of lawmakers who consistently vote down reasonable marijuana reforms.
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