Biden’s wariness on marijuana puts another target on his back

November 22, 2019 | Geoffrey Marshall

By Mona Zhang for Politico

“Although Schedule II might not be a perfect solution, anything is better than where it is now in Schedule I,” said Steph Sherer, president of medical marijuana advocacy organization Americans for Safe Access. While the group would certainly like to see marijuana removed from the Controlled Substances Act, its stance is that rescheduling is the more realistic option, politically.

In an otherwise lackluster debate, former Vice President Joe Biden faced withering criticism Wednesday night for his stance on an issue that puts him way out of whack with the rest of the field: marijuana.

“This week I heard him literally say I don't think we should legalize marijuana. I thought you might have been high when you said it,” Sen. Cory Booker (D-N.J.) said to rolling laughter in Atlanta. “Marijuana in our country is already legal for privileged people.”

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Biden has taken a timid stance compared with the rest of the Democratic field, proposing to move marijuana to a less restrictive category, while most other top candidates have detailed proposals for legalizing marijuana — or have supported such legislation in Congress.

His reluctance to embrace legalization — coupled with recent comments that it poses a risk as a “gateway drug” — has opened Biden to further criticism about his past tough-on-crime policies and the perception that he’s old and out of touch.

And Biden’s position seems to sharply conflict with the Democratic base: Nearly 8 in 10 Democrats and Democrat-leaning independents support legalization, according to new polling by the Pew Research Center.

“Joe Biden’s platform lacks imagination,” said Queen Adesuyi, policy manager for the Drug Policy Alliance, a group that advocates for the decriminalization of drugs. “He’s competing against people who have single-handedly changed the conversation in Congress.”

Sen. Bernie Sanders (I-Vt.), the first major presidential candidate to back legalization in 2016, proposes completely removing marijuana as a controlled substance from federal drug laws — along with a slew of other social justice-oriented proposals. Other candidates including Sens. Booker, Kamala Harris (Calif.) and Elizabeth Warren (Mass.) back comprehensive legalization proposals in Congress.

So what does Biden's plan really say?

Biden supports shifting marijuana from Schedule I to Schedule II — a less restrictive category under the Controlled Substances Act. In its current place as a Schedule I drug, marijuana is defined as having “no currently accepted medical use” and “a high potential for abuse.” By shifting it to the less restrictive category, the federal government would maintain the stance that marijuana has a “high potential for abuse” but also recognize the drug’s potential medical uses. Other drugs classified as Schedule II include cocaine and fentanyl.

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A spokesperson for Biden’s campaign said reclassifying marijuana would help “ensure that researchers can further research its effects."

In addition, “Vice President Biden has made clear that no one should be in jail for using marijuana,” the spokesperson said. “That's why, as president, Joe Biden will decriminalize marijuana use, automatically expunge prior possession convictions, support legalization of medical marijuana, and allow states to set their own rules about recreational use.”

How would that work?

Cannabis advocates of all stripes say they are confused by Biden’s stance. They say they don't understand how Biden’s rescheduling plan squares with his criminal justice goals or resolves the federal-state conflict, given that plenty of people still go to jail for Schedule II drugs like cocaine.

Moving marijuana to a lower category “doesn’t decriminalize it,” said David Holland, a litigation attorney who serves as legal director for marijuana legalization advocacy group NORML’s New York chapter. “For all intents and purposes, Schedule II is just as bad as Schedule I, because all state policies would be in conflict with federal policies.”

Indeed, Shelly Edgerton, who spearheaded Michigan’s medical marijuana licensing program and now serves as senior counsel at the law firm Dykema, said that the whole idea of moving marijuana to Schedule II is “past its prime for the purposes of the real work that needs to be done.”

From a research perspective, moving marijuana to Schedule II does not resolve many of the hurdles facing researchers. Marijuana advocates and scientists have long criticized the University of Mississippi’s monopoly over growing research on marijuana. Biden’s proposal does not end that monopoly, nor would it help scientists study what is available in state-regulated marijuana markets.

Is Biden’s plan impossible?

Not necessarily. Biden could direct his attorney general to move marijuana to Schedule II. He could urge Congress to take action to decriminalize marijuana or pass some sort of legislation resolving the federal-state conflict.

And some advocates are more willing than others to consider Schedule II an incremental step toward reforming marijuana laws.

“Although Schedule II might not be a perfect solution, anything is better than where it is now in Schedule I,” said Steph Sherer, president of medical marijuana advocacy organization Americans for Safe Access. While the group would certainly like to see marijuana removed from the Controlled Substances Act, its stance is that rescheduling is the more realistic option, politically.

What would Schedule II do for the industry?

While the marijuana lobby pales in comparison to other industries like pharma and tech, the booming multibillion-dollar industry has spent an increasing amount of money on Capitol Hill. And Biden’s Schedule II proposal certainly doesn’t please the fast-growing industry.

“Moving it to Schedule II — that may have made sense 25 years ago before there was already a robust state cannabis industry in place,” said Aaron Smith, executive director of the National Cannabis industry Association. “Rescheduling to Schedule II or III or IV would be so disruptive to those industries that it would undermine all of the progress that is being made. … It could be completely devastating to the jobs and to the economies that rely on this industry.”

Theoretically, moving marijuana to Schedule II and adopting a policy of nonenforcement like the Obama-era Justice Department guidance known as the Cole memo could prevent a rescheduling move from destroying the existing industry. But it still doesn’t resolve the federal-state conflict in marijuana laws. Nor does it help the industry with related issues like a lack of access to banking or the steep federal tax rates due to a provision of the tax code that treats cannabis companies like illicit narcotics traffickers, preventing them from taking typical business deductions.

But Biden’s stance pleases anti-legalization advocates.

“What the vice president is doing is putting a marker down, saying he doesn’t agree with the commercialization of marijuana,” said Kevin Sabet, president of Smart Approaches to Marijuana, a group that advocates against legalization. Sabet also pointed out that marijuana policy is not moving voters when it comes to a presidential race, as polling suggests.

“At the end of the day, marijuana is an insignificant national issue,” Sabet said. “It’s not moving voters.”

Biden may not be the most conspicuous outlier in the Democratic field for much longer. Former New York City Mayor Michael Bloomberg is preparing to enter the presidential race, and he has been forced to answer for his tough-on-crime policies during his tenure. Earlier this year, Bloomberg described legalizing marijuana as “the stupidest thing anybody has ever done.”



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