In a letter this month to inquiring lawmakers, the Drug Enforcement Administration quietly announced that it will decide whether to change the federal status of marijuana “in the first half of 2016.” The move excited legalization advocates and reminded everyone else of how convoluted our drug regulatory process can be.
Under the Controlled Substances Act, enacted in 1970 while facing backlash against the recreational drug use of the 1960s, the federal government categorizes drugs based on their medical value and potential for abuse. If substances have no potential for abuse, they aren’t controlled at all. If they do, they’re classified in one of five schedules of decreasing severity.
Drugs in Schedule I are deemed as having “no current accepted medical use” and a high potential for abuse — the category where marijuana resides, alongside heroin, LSD, ecstasy and others. These drugs are regulated with extreme stringency in terms of access, research and supply.
Federal drug laws: Where things stand
Weed news and interviews: Get podcasts of The Cannabist Show.
Subscribe to our newsletter here.
Watch The Cannabist Show.
Peruse our Cannabist-themed merchandise (T’s, hats, hoodies) at Cannabist Shop.
Schedule II drugs — such as morphine, fentanyl and methadone — are seen as having a high potential for abuse but some medical value. Schedules III-V contain drugs of medical value and decreasing potential for abuse. Each schedule is regulated with correspondingly less strictness.
Critics of the system (or at least of certain drugs’ positions on the schedule) point out that this creates a circular problem. Drugs are placed in Schedule I under the presumption that they have no accepted medical use. Yet the strict regulations of that schedule make it difficult to conduct the scientific and medical research that could uncover such drugs’ medical potential, making it all but impossible to move them to a different schedule. Cannabis, for instance, has shown potential therapeutic value for ailments including chronic pain and epilepsy, but only one place in the United States (a University of Mississippi farm) is allowed to grow marijuana under federal regulations. A number of Schedule I psychedelic compounds have similarly shown promise in treating mental health conditions such as depression and post-traumatic stress disorder, but it’s difficult to set up the sort of large-scale studies needed to meet the government’s standards for use.
In addition, many schedule placements seem arbitrary at best and deliberately skewed at worst. Alcohol and tobacco aren’t in any schedule at all, despite their proven susceptibility for abuse. Schedule I serves as a catchall for drugs of barely comparable levels of danger and potential benefit, many of which have been stigmatized through racist or classist propaganda. Meanwhile, other mostly recreational drugs like cocaine are in placed in more lax schedules on the basis of quite limited medical use.
There are two mechanisms for changing a drug’s placement on the schedule. The more complicated administrative process involves the U.S. attorney general’s office . When a petition for review of a certain substance is filed with the attorney general, a DEA administrator by the authority of the attorney general can request that the government provide a scientific evaluation and recommendation as to whether the drug should remain controlled and in what schedule it should be placed. Once this review and recommendation is complete, the attorney general – often through the DEA — makes a final decision as to whether the drug should be rescheduled, scheduled or removed from the schedule entirely. Only then can the attorney general initiate (or not) rulemaking proceedings for the schedule transfer or removal of the substance. The government’s recommendations are supposed to be returned in a “timely manner,” but the process moves very slowly — earlier reviews have taken 22, nine or seven years, only to be denied in the end .
Alternatively, there is the legislative process: Congress could pass a law amending the Controlled Substances Act to move a drug to a different schedule (or remove it entirely). Most past amendments to the law have tightened regulations around drugs, not loosened them, but the 2015 CARERS Act , introduced in the Senate last spring to reschedule marijuana, has garnered support in both chambers of Congress. Legislation could help to rationalize clashes between federal and state drug policy – despite marijuana remaining in Schedule I, 24 states and the District have legalized medical marijuana.
It’s possible that our scheduling system no longer makes sense. As our understanding of drug use and the science behind addiction has advanced (and perhaps as moral norms have shifted), have the standards outlined in the Controlled Substances Act become outdated, or are they still useful? What would the ramifications of change be? Should marijuana be rescheduled, and are there other drugs that should be reconsidered?
Christine Emba is a columnist for The Washington Post and is the editor of In Theory, the Post’s ideas blog.