Advocates for change to the federal law criminalizing marijuana believe they’re closer than ever to getting the drug removed from a list of prohibited substances in the United States.
It’s not the first time a bill has been introduced in Congress to eliminate cannabis from the list of controlled substances enforced by the federal Drug Enforcement Agency. But longtime advocates of reform say this time the circumstances are different.
For one thing, the legislation has some powerful backers in Congress, including Sen. Kamala Harris, a presidential hopeful and former California attorney general, and Rep. Jerry Nadler, chairman of the House of Representative’s powerful Judiciary Committee.
For another, the legislation includes programs intended to address documented racial disparities from decades of enforcement of drug laws.
As a result, national and local advocates are hopeful the question of whether to decriminalize cannabis will get its first up-or-down vote in Congress.
“It’s huge. The Judiciary Committee is the gatekeeper for most of these issues,” said Rep. Earl Blumenauer, D-Ore., one of the founders of the Congressional Cannabis Caucus, in a phone call with reporters this week discussing the bill. “We’ve worked to have other areas of Congress, other committees to play their role, but this is key. This is the path forward to really fix federal cannabis policy with the major committee of jurisdiction.”
While dozens of states, including Washington, have legalized the drug for medical, recreational or both uses by either voter initiative or act of the state legislature, it remains among the list of controlled substances overseen by the DEA, along with LSD, peyote and ecstasy. The new legislation would remove marijuana from that list entirely, rather than reclassifying the drug and subjecting it to the same pharmaceutical regulations as opioid painkillers, antidepressants and some steroids.
That approach has been endorsed by the National Sheriff’s Association and former Vice President Joe Biden, who’s also looking to carry the Democratic mantle in the 2020 presidential campaign.
Kevin Oliver, executive director of the Washington chapter of the National Organization for the Reform of Marijuana Laws, said that approach would not be compatible with how most consumers now buy their cannabis.
“It would not be good for consumers, the adult users, and people who don’t want a patented prescription,” Oliver said. “Schedule II wouldn’t really move the needle at all.”
Such an approach would leave marijuana under the jurisdiction of the Food and Drug Administration rather than leaving it up to states to determine how to best regulate the drug. One area that’s been impacted is research, which is restricted at present to cannabis grown at one site in the United States. Additionally, researchers are required to obtain strict clearances from the DEA to access the drug.
Spokane County Sheriff Ozzie Knezovich, who has been critical of the state legalization of marijuana in the past, said decriminalizing the drug at a federal level would be “a bad move,” even with promises that money from the taxation of marijuana would be used for programs to assist communities that have been affected by its use and by the prosecution of low-level crimes.
“I think it’s being done because there’s a lot of money surrounding that issue,” Knezovich said. “If we want to trade our children’s future for tax revenue, I just wonder how much of that tax revenue is going toward prevention.”
Removing marijuana from the list entirely would also eliminate another impediment to the industry that business owners repeatedly raise: access to banking. Most financial firms won’t conduct business with cannabis companies because of the threat of federal action against lenders who work with firms violating federal drug laws. Removing marijuana’s status as a controlled substance would squelch that fear.
The U.S. Senate considered this week a bill that would prevent federal authorities from prosecuting or penalizing banks dealing with state-authorized marijuana businesses. But that bill leaves in place the drug’s federal classification as an illicit substance.
The legislation would also establish a new 5% federal tax on all sales of marijuana products in the United States. Money collected would be deposited in a federal trust fund that would then be made available through grants, targeted to areas and communities that have been “most adversely impacted by the War on Drugs,” according to a draft version of the legislation released by Harris’ office.
The money could be used for job training programs, legal payments to expunge records of marijuana convictions and substance abuse treatment programs.
Rep. Barbara Lee, D-Calif., said the bill would address racial inequities brought about by enforcement of drug laws dating back to the 1980s. A 2013 American Civil Liberties Union study analyzing arrest data from all 50 states found that in Washington state blacks were 2.8 times more likely to be arrested for marijuana possession than whites.
“So many lives have been shattered by unjust marijuana laws,” Lee said.
In May, Gov. Jay Inslee signed into law a measure that would allow state residents to seek erasure of their past marijuana misdemeanor convictions. The federal bill would include money to assist with the legal costs of that process, but it would also set aside money that would be used to encourage more minority ownership of legal cannabis businesses.
That’s all good news, said Kurtis Robinson, head of the Spokane chapter of the NAACP. Robinson, who himself was incarcerated in the 1980s and has advocated for reforms in the justice system to assist former convicts, applauded the legislation’s aims to rectify laws that had not only put minorities in prison for the drug, but also prevented them from involvement in the new industry.
“This has decimated poor communities and communities of color,” Robinson said. “How do we own that space and put in some long-term solutions that not only impact those communities in a positive way, but is also restorative by putting them in places of meaningful authority and power?”
A 2017 survey from the trade publication Marijuana Business Daily of 389 marijuana business owners found that just 4.3% of surveyed businesses were founded or owned by people identifying as African-American, with 81% identifying as white. But, the study notes, the results indicate that minority-owned businesses may make up a larger portion of the industry than is generally assumed by industry watchers, though much of that effect may be due to the larger portion of minority-owned cannabis businesses in California.
Knezovich said any money raised through taxes would not undo the costs to society of marijuana use, likening tax receipts from alcohol sales to the larger societal costs of its abuse.
“There’s never going to be enough money to fix the damage that this drug, or any drug, does,” the sheriff said.
Supporters hope that the bill will receive a public hearing in the House Judiciary Committee following Congress’ August recess. Even then, it will likely face a tough road to passage with GOP control of the U.S. Senate. Sen. Mitch McConnell, R-Ky., was a key player in the push to legalize hemp production through last year’s Farm Bill, but he made clear in his public statements he wasn’t interested in legislation that would legalize its agricultural cousin, marijuana. Nor is Sen. Lindsey Graham, the South Carolina Republican who chairs the Judiciary Committee in the Senate, seen as a strong ally for marijuana in the upper chamber.
Still, in a history that dates back decades, the legislation now before lawmakers in both chambers to decriminalize the drug is spurring enthusiasm in the nation’s capital from reformers, Oliver said.
“This is the best chance that we’ve ever seen, so far, in the history of cannabis politics,” he said.
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