Don’t Reschedule Cannabis
Remove cannabis from the Controlled Substances Act altogether
When a story about marijuana policy appears “above the fold,” as the expression goes, as it recently did in The New York Times, it must mean that some big change is in the offing. As it turns out, a potential big change is in the air. Cannabis has always been listed as a Schedule I “dangerous drug” (alongside heroin, I’ll have you know) within the Controlled Substances Act, which was enacted in 1971, and that serious discussions are now underway to move cannabis to Schedule III. Is this potential change a big deal? And what is the Controlled Substances Act anyway? Let’s take a look.
The Controlled Substances Act is probably the most significant piece of legislation by prohibitionists in modern times. Here’s how it came to be. Timothy Leary — yes, that Timothy Leary , specifically of the 1960s—was arrested for marijuana possession, which is a violation of the Marihuana Tax Act of 1937.
Leary challenged the Act on the grounds that it required self-incrimination and therefore was in violation of his Fifth Amendment rights. The court agreed and declared by unanimous decision that Leary’s “conviction under the Marihuana Tax Act violated his privilege against self-incrimination.” Shortly thereafter it became clear to legislators that the Marihuana Tax Act couldn’t simply be dusted off and adjusted. A whole new paradigm was needed. And so the Controlled Substances Act came to be, an Act that would rope in all “controlled” substances.
The Act segregates drugs into five incoherent and contradictory categories. Marijuana is a Schedule I drug (the most dangerous), but cocaine is not (due to limited medical use) and is in Schedule II. Get this: cocaine can kill you; marijuana cannot. Over-the-counter aspirin? It’s not even scheduled. It’s off the chart, as it were — and yet aspirin kills five thousand people a year, whereas marijuana, exclusively and acutely, has killed no one.
And yet the federal government still classifies cannabis as a “dangerous” and “controlled” substance. It’s great that a significant number of states have legalized cannabis for medical or recreational use or both, but from the narrow perspective of the federal government, cannabis is still illegal, it is deemed to have no usefulness, and, as of this writing, it is said to be as deadly as heroin.
But here’s the thing about calling cannabis a “controlled” substance. It isn’t controlled, at least not in those counties or states where the plant is still considered illegal to possess, sell, transport, or consume.
By contrast, alcohol is a controlled substance. It is sold at regulated establishments. And underground economy isn’t control. It’s anarchy. So what is prohibition? I can tell you: total deregulation. As things stand now, deaths incurred by recreational drug use occur for one of three reasons: accident, misuse, and impure product. Drug regulation is about doing the best job we can to prevent the first, avoid the second, and to completely eliminate the third. In a nutshell, that’s legalization. Worried that cannabis might be spiked with fentanyl? In a market where cannabis is truly controlled (regulated) that’s not going to happen.
The American Medical Association now supports the medical use of marijuana. For seventy-plus years this venerable (and conservative) institution maintained that marijuana had no medical or therapeutic value. But if you go to the AMA website today you’ll find this: “Medical marijuana has become an increasingly popular treatment option for a range of medical conditions, including chronic pain, nausea and seizures. Medical marijuana can also be used to treat anxiety, depression and other mental health conditions.”
As a result of this admittance, that smoked marijuana does have some medical benefits, the organization is now recommending that the Drug Enforcement Administration, with its reliance on the Controlled Substances Act, reschedule the drug as a plant that has no medicinal value to a schedule where medicinal benefits can be studied by researchers without fear of the DEA’s stormtroopers barging in and making arrests.
A drastic change in drug policy has always been a longtime coming even with the presence of enlightened minds at the DEA. Francis L. Young, a former DEA Chief Administrative Law Judge, argued that marijuana should be moved from Schedule I to Schedule II (not III, which is what some reformers are calling for today). “Marijuana, in its natural form,” said the judge in his Marijuana Rescheduling Petition on September 6, 1988, “is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care.”
Young’s findings were met with silence — and the scheduling system continued on its loony way. Yes, loony. Take a look: Marinol is synthetic THC (remember, marijuana’s THC is said to have no medical benefits) and a Schedule III drug; CBD, a cannabinoid, is a nonpsychoactive drug, but a Schedule I drug. GHB, once freely available, is now said to have no medical use and is therefore a Schedule I drug — oh, but hold on: an exception is made for narcolepsy. Yes, this is your government hard at work.
Cannabis should be sold like beer with all the attendant legal requirements and regulations that come with being a brewer or a proprietor of a drinking establishment. Some people argue that cannabis should be sold like coffee. California Assemblyman Matt Haney argues that “Lots of people want to enjoy legal cannabis in the company of others. And many people want to do that while sipping coffee, eating a scone, or listening to music. There’s absolutely no good reason from an economic, health, or safety standpoint that the state should make that illegal.” In other words, if the Netherlands can have cannabis cafés, so can California.
So is moving cannabis from Schedule I to Schedule III an indication of progress? Yes and no. From the standpoint of sheer categorization — that anything in Schedule I is considered to be more dangerous than anything in Schedule III — I’ll concede that it’s a kind of progress. But from another, larger and more encompassing perspective of genuine progress, this move — if the move happens — is not a measure of progress because it reifies and reinforces drug war thinking. Those who want to see cannabis regulated and sold like beer (or coffee) want commerce and markets. Keeping cannabis within the confines (clutches) of the Controlled Substances Act achieves neither. Moving cannabis from Schedule I to Schedule III means the Drug Enforcement Administration would still be calling the shots. That’s not commerce and markets. That’s a drug war paradigm. “Marijuana isn’t heroin, but it’s still dangerous.” That’s not progress.
Cannabis should not be re-scheduled. It should be de-scheduled. To move cannabis to Schedule III is nothing more than an admittance that drug war thinking still rules the day. Or as The Washington Post reports, “Some marijuana advocates have cautioned against declaring rescheduling a major victory, noting reclassification alone would not change penalties for major federal marijuana cases and regulatory confusion would persist.”
Let’s free the plant from the auspices of drug warriors. Let it flourish in a regulated market. Let’s come to our senses and stop going after people because of their use of dried plant matter. If we truly want to control cannabis, it must be removed from the Controlled Substances Act. An across-the-board regulated market is the only solution.
Barry Lyons is a freelance writer and copy editor living in New York City. This essay is adapted from his Letter to a Prohibitionist. I also have thoughts about the Second Amendment.
