You may have heard the big news that cannabis could be “rescheduled,” from Schedule I to Schedule III. Here’s what it means, with the bottom line being that rescheduling wouldn’t legalize the plant, but it could make an illogical system slightly more sensible.
First, what’s scheduling? It’s how the federal government categorizes drugs. The Controlled Substances Act has five “schedules,” ranked in order of severity (in the government’s view). Schedule I is the most restricted category, listing substances that — again, according to the government — lack accepted medical use and have high abuse potential.
Rescheduling wouldn’t legalize the plant federally. But it would loosen restrictions that come with Schedule I status.
But wait, that would mean weed is on the most-restricted schedule. Is that really the case? Yes, yes it is. Other Schedule I drugs include heroin, LSD and ecstasy — a grouping that doesn’t make a lot of sense, either, but let’s focus for now on the ridiculousness of cannabis not only being illegal but given the harshest classification.
Importantly, rescheduling wouldn’t legalize the plant federally, even though states across the country have taken that commonsense step. But it would loosen restrictions that come with Schedule I status, which has impeded research and legal commerce. For example, federal law blocks tax deductions for businesses that “traffick” in substances under Schedules I or II; moving to Schedule III would ease that burden.
So, which drugs would weed join if it moved to Schedule III? That category contains substances deemed to have moderate-to-low potential for dependence. It includes ketamine, anabolic steroids and Tylenol with codeine, among other things.
But the reason I’m referring to rescheduling as something that could happen is that cannabis hasn’t been rescheduled just yet. Rather, after President Joe Biden asked for a review, the Department of Health and Human Services recommended the move to Schedule III. Now it’s up to the Drug Enforcement Administration to make the final decision. That is, in another absurd feature of the drug war, the enforcement authorities will decide the plant’s placement.
Of course, there’s no good reason for the DEA to reject rescheduling. But there hasn’t been good reason for cannabis to have been on Schedule I all this time, either. To be sure, moving marijuana to Schedule III wouldn’t dismantle the drug war or solve the host of problems needlessly caused by prohibition. Descheduling, or removing the plant from the government’s list of controlled substances, would make more sense and better align with Biden’s stated criminal justice views. Still, rescheduling would be historic, if only due to the historic stupidity that has kept cannabis on Schedule I to date. But first, we’ll see if the DEA takes even this modest step.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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