Will the DEA reschedule marijuana? Don’t bet on it.

Are we about to see the first re-classification of cannabis in a generation?

There’s been a lot of hullaballoo the last few days regarding a recent letter from the DEA to Elizabeth Warren (D-MA) and seven of her colleagues about marijuana research and classification. The DEA’s twenty-six page letter was signed by the holy trinity of US drug policy: Chuck Rosenberg, the DEA’s Acting Administrator; Sylvia Burwell, the Secretary of the US Department of Health and Human Services; and Michael Botticelli, the Director of the Office of National Drug Control Policy. Written in response to a 2015 letter from Warren and company pressing the Feds to ease restrictions on research into marijuana’s medical benefits, the letter made a huge splash by asserting that the DEA “hopes to release its determination [regarding reclassification of cannabis] in the first half of 2016.”  (emphasis added)

Speculation that the DEA is about the reschedule cannabis has approached delirium levels across the internet. Although I tend to be an optimist, I am a lawyer and, as such, very much a realist. And the reality, as much as I hate to say it, is that the DEA is about as likely to reschedule cannabis voluntarily as it is to stop selling drugs, having sex parties with hookers paid for by drug cartels, and otherwise wasting taxpayer dollars through any number of bad policies and shady acts.

First of all, let’s discuss money. The DEA is a part of the larger Justice Department, which has shown an enormous appetite for pursuing cannabis users, cultivators, and sellers. Despite clear direction to lay off of state-legal marijuana distributors from both the President (in the form of a trio of memos- the Ogden memo and two Cole memos) and from Congress (in the form of a specific provision in a 2015 funding bill- the 2015 Appropriations Act § 538) the Justice Department has continued to prosecute legitimate, state law compliant marijuana growers and distributors. A large part of the problem is, as you might imagine, money. The Justice Department has broad forfeiture powers over Federal drug law violators. To give you an idea of the scope of the problem, in 2014 the Justice Department gave my home state of North Carolina almost $11,000,000 in funds generated from forfeitures within the state pursuant to a Federal sharing program that utilizes and encourages state agencies to pursue forfeitures in drug cases. That’s the tip of the proverbial iceberg. Total Federal drug forfeitures yielded over $3,700,000,000 nationally in 2014. And, as reported by the Sun Times in October, 2015, “Asset forfeiture laws propel the war on weed.” Do you think that the DEA will give up this free money without a fight?

Next, let’s discuss precedent. The DEA has been asked to reclassify cannabis many times in the past and has consistently refused to do so. The most recent petition was in 2011, a full 15 years after Californians voted Proposition 215 into law. Why would the DEA have a sudden change of heart now that it’s been 20 years since Prop 215 took effect, particularly since its new head (Rosenberg, who signed the letter to Senator Warren) continues to view medical marijuana as, “a joke.”

Let’s discuss sheer unwillingness. The DEA appears to pass the buck yet control the result when it comes to re-classifying cannabis. It has sat on its hands for five years since it received the last petition: the 2011 petition discussed above is still pending. According to a September 2015 letter to Congressman Blumenauer (D-OR), the DEA has tasked the Department of Health and Human Services (“HHS”) with making a scientific inquiry and recommendation of cannabis’s medical properties. Although it appears from the Blumenauer letter that the HHS may have made its recommendation the DEA won’t indicate what it was. Could it be that the HHS recommended reclassification but the DEA doesn’t want to abide by its findings? We can only speculate. That certainly seems to be the case.

I could go on. The point is that we shouldn’t put our hopes in the DEA to reschedule cannabis. The DEA is corrupt, gets too much money from cannabis prosecutions, violates the law and specific directions from its President, won’t acknowledge legitimate scientific studies about cannabis’s medical benefits, and has historically refused to make a decision about cannabis reclassification. The odds that it will reclassify now are highly unlikely. Trust me, as a cannabis business lawyer I’d love to be proven wrong. But, even if I am proven wrong and the DEA reschedules cannabis, it will likely be a small downgrade to Schedule II. (Admittedly, much better than Schedule I, but still way off the mark.) It’s unlikely in the extreme that the DEA will do what it should have done decades ago: de-classify cannabis and remove it from the Controlled Substances Act completely. If that happens then there’s going to be lots of frozen daiquiris in hell and pigs with wings flying about.

Rod Kight is a lawyer based in Asheville, NC. He is licensed in North Carolina and Oregon and represents legal cannabis businesses. You can contact him by clicking here.

4-13-2016