After making a name for himself as being tough on crime, few would have guessed Joe Biden would be the president pardoning drug offenders. Yet, with the Biden administration openly supporting psychedelics and now cannabis reform, it seems Joe Biden has changed his tune.
Both Biden and vice president Kamala Harris campaigned on decriminalizing marijuana use and offering clemency for simple marijuana possession. Biden made some progress on the promise in April with three pardons and reduced sentences for 75 offenders. However, the unconditional pardon announced on Oct 6 presents a much wider opportunity, which could also be a breakthrough in the long term for psychedelics.
What Do Biden’s Cannabis Pardons Do?
The pardons initially have affected at least 6500 people, which admittedly is a drop in the bucket. The reception amongst advocates is marked by criticism that more must be done and that the pardons are simply a political move before midterms. Most would agree these criticisms are true, but some credit is due with Biden reasoning that:
“Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities. And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.”
Sure, Biden’s own past policies have arguably contributed to this, but it’s still a landmark moment. Other critics cry that Federal convictions of simple possession are rare, that thousands of people are left out of the pardons (and in prisons), nor does it guarantee the rescheduling of cannabis.
Politics aside, it’s still early days for the unfolding of the announcement, and it’s hard to know the impact just yet. In the short term, it does seem that the pardons will help many whose criminal records make finding work, a home, college, or accessing federal services difficult.
The order is broken into three parts:
- Federal Pardons – “Full, unconditional pardon” of “simple marijuana possession.” Violent offenders, those trafficking charges, or production are not pardoned. Pardons are not automatic, and the process for receiving one is being developed.
- State Level – Biden has endorsed pardons at the state level, which has received mixed reviews. Some governors welcome the news, while others openly reject it.
- Scheduling Review – Biden has also directed the Department of Health and Human Services and Department of Justice to review the scheduling of cannabis as a schedule 1 substance, sanely pointing out that cannabis being in the same class as heroin “doesn’t make sense.”
Are the Pardons Good News for Psychedelics?
Shane Pennington is Counsel at Vicente Sederberg LLP and Matt Zorn a Partner at YetterColeman LLP. The two are co-authors of the “On Drugs” newsletter — essential reading for those interested in drug reform.
In a recent post, Pennington cuts through the widespread cynicism towards the pardons in media coverage, pointing out that Biden’s move could be a “game changer.”
Pennington explains that Biden ordering a review of cannabis as a Schedule I drug “could revolutionize federal drug law.” An opportunity exists because rescheduling cannabis could require the DEA and FDA to reinterpret why cannabis is Schedule I, and such an interpretation could also apply to psychedelics.
How substances are scheduled depends on passing DEA tests and gaining certain FDA approvals. Yet clearly there are problems with the current Controlled Substances Act interpretation, an obvious example being, not recognizing evidence of the efficacy of medical cannabis demonstrated by multiple states.
Even though some psychedelics have an FDA “breakthrough therapy” stamps of approval, the substances still remain Schedule I. The CSA is federal law and this classification creates constraints on psychedelic research and access across different states, just like cannabis.
But Pennington says if lawmakers change interpretations of Scheduling cannabis, the move “will permit — or at least open the door for — other substances to escape schedule I as well.”
Can Biden’s Order Change the Controlled Substances Act?
A change in interpretation of the Controlled Substances Act might be a huge boon to an extensive list of substances. However, at this stage in the game, there are no guarantees. Pennington also acknowledges:
“DEA could, for example, change its administrative interpretation of ‘potential for abuse’ in a way that somehow permits the agency to treat cannabis as having a potential for abuse lower than that of specific schedule I psychedelics.”
Exactly how changes to scheduling drugs through the CSA is tricky to predict. Currently, the DEA is (mostly) strict on placing “high abuse with no medical value” drugs in Schedule I. But Pennington says reinterpretation could bring in a more flexiable system — which could take a variety of directions.
At the moment, the DEA evaluates drugs based on abuse potential, accepted medical use, and a drug’s safety and dependence profile. Findings on this evaluation are treated as “mandatory,” although Pennington says this approach “isn’t applied uniformly” and “doesn’t make logical sense under close scrutiny.”
He goes on to describe how in the past courts have permitted the DEA to keep some drugs out of Schedule I by treating scheduling requirements as a “balancing test,” giving the DEA more authority to keep some drugs, even those with addiction or not medical use, out of Schedule I. Pennington suggested it is a possibility the DEA could return to this approach.
While this type of flexibility might appear to give wiggle room to psychedelics, Pennington points out that:
“The main problem is that courts would defer reflexively to DEA’s approach to such a ‘balancing of all the factors’. That would mean that DEA’s subjective view of these matters would be virtually immune to judicial review.”
Without getting further into the legal weeds, let’s just be clear at this point that it’s a lot of speculation on how exactly the review of cannabis will go and what the impact will be.
Uncertainty abounds, perhaps the biggest takeaway is there is much yet to be understood about the impact of Biden’s order and the announcement is only the beginning of a longer process.
Psychedelic Pathways to Legalization
Co-author of On Drugs, Matt Zorn also is clear that Biden’s order is “a huge cultural shift in America.” And if marijuana is rescheduled, “there will be significant changes,” while adding, “the president is delivering on a campaign promise. How often do you see that?”
While a broad reinterpretation of the Controlled Substances Act would create opportunities for psychedelics Zorn also assured us that:
“Psychedelics and cannabis are tracking two different pathways. The main distinction is that psychedelics are going through the FDA process while, by and large, cannabis has not.”
Zorn also mentions how enforcement around marijuana has been discriminatory and that while psychedelics have their own set of problems, they don’t carry the same stigma as cannabis. When asked if psychedelics should be expected to follow the path of cannabis, he elaborates that:
“It’s hard to compare cannabis to psychedelics. The cultural background behind cannabis and psychedelics overlaps, but not to the point where what just happened with cannabis can or should be expected with psychedelics.”
A reinterpretation of the Controlled Substances Act is an exciting prospect, potentially even an access point for the sweeping reform advocates dream of.
Even if reform unfolds in a way that excludes psychedelics, Zorn’s observation that cannabis and psychedelics are currently on different pathways should offer solace to the psychedelic space. Notably, the earlier endorsement from Biden and the FDA.
Whatever the outcome, none can deny at this point that in America, the conversation around mind-altering substances is entering new and promising territory.
