After Over 50 Years, It’s Time to Decriminalize Cannabis

Moving cannabis from Schedule I to Schedule III on the Controlled Substances Act isn’t going far enough.
Nazish Dholakia Senior Writer
May 21, 2024

This week, the Drug Enforcement Agency (DEA) released a proposed rule that would change the classification of cannabis from a Schedule I drug to a Schedule III drug under the Controlled Substances Act (CSA). Although rescheduling is a step in the right direction, it is an inadequate response to the decades of harm caused by its criminalization.

For more than 50 years, cannabis’s criminalization has upended lives. Even arrests that have not resulted in convictions have led to a lifetime of consequences that have impacted people’s employment, housing, access to public benefits, child custody, immigration status, and more. Black people and other people of color have been harmed most by this policy choice, as laws have been aggressively and disproportionately enforced against them.

Instead of moving it to a lower schedule, the DEA needs to deschedule cannabis entirely and remove it from the CSA altogether—which would decriminalize cannabis and ensure that possession is no longer a crime under federal law. And importantly, the public has a chance to weigh in before the DEA makes its final decision and to encourage the federal government to follow the lead of 31 states that have already fully or partially decriminalized certain cannabis offenses. A 62-day public comment period is now open.

Add your voice!

Tell the DEA that you support federal cannabis decriminalization today.

Take action

What descheduling means

The CSA places all substances that federal law regulates into one of five schedules. Schedule I substances are defined as those with no accepted medical use and the highest potential for abuse. Cannabis currently falls into this category, as do ecstasy, heroin, and LSD. At the other end of the CSA, Schedule V substances, such as cough medicines with codeine, are considered to have a low potential for abuse.

Cannabis has been categorized as a Schedule I substance on the CSA since the act was first implemented in 1970, during Richard Nixon’s presidency. The placement was meant to be temporary, pending review by a commission Nixon appointed. But when the commission unanimously recommended decriminalizing cannabis, Nixon disregarded its guidance. His decision to schedule cannabis, as noted in a report by the American Civil Liberties Union, “had nothing to do with marijuana or science, and everything to do with criminalizing and controlling certain communities,” namely, Black people and the anti-war movement.

Notably, cannabis’s current CSA classification is not informed by the drug’s potential for medical use or its effects on the body. The U.S. Department of Health and Human Services found in its own review in 2023 that cannabis is less dangerous than alcohol in several ways. The latter has never been scheduled under the CSA.

"The issue is, why does the Biden administration consider public health concerns to require criminalization when it comes to cannabis without a prescription, but not other drugs that have documented public health concerns, like alcohol and tobacco?” said Marta Nelson, director of sentencing reform at Vera. “That disparity, together with the fact that the drug is legal in so many states, makes the decision to keep marijuana on the schedule—to keep criminalizing it—unacceptable, especially when the weight of criminalization falls so heavily on Black communities and other communities of color.”

Reclassifying cannabis as a Schedule III drug would acknowledge its valid medical use, but possession without a prescription would remain a crime under federal law. By contrast, descheduling cannabis entirely would permit it to be regulated, as alcohol and tobacco are, without criminal consequences for users.

Why it matters

Much has been revealed about the racist origins and underpinnings of the War on Drugs, yet the U.S.’s punitive approach lives on. Black adults are still disproportionately likely to be arrested for marijuana-related offenses, although Black and white people in the United States use it at comparable rates.

President Biden has even acknowledged that arrests and convictions for cannabis use and possession have “imposed needless barriers to employment, housing, and educational opportunities.” Moving cannabis to Schedule III will do nothing to lift these barriers, but wholly descheduling the substance could be a real step toward addressing the harms of its criminalization.

And, once cannabis has been descheduled, efforts should be made to address the harm that many have experienced over the decades of its criminalization. President Biden has already pardoned thousands of people convicted under federal law of simple cannabis possession—first in October 2022 and again in December 2023—but federal policy has still lagged far behind public sentiment and is at odds with laws in the majority of states. Congress could pass bills like the HOPE Act, the Clean Slate Act, or the Fresh Start Act, which would make requests to seal criminal records easier. Additionally, the U.S. Department of Justice could issue guidance to prioritize and devote more resources for record sealing for past offenses.

A Gallup poll this past November found that 70 percent of people in the United States support cannabis legalization. Twenty-four states, three territories, and the District of Columbia have gone beyond decriminalization to actively legalize both medical and recreational cannabis (another 14 states have legalized it for medical purposes alone). Five states are advancing legalization legislation. Rescheduling cannabis is not enough and would not address the growing inconsistency between federal and state laws.

It’s time for federal policy to catch up. Cannabis needs to be removed from the CSA. Descheduling it is a step toward full legalization and rectifying the harms caused by its criminalization. During this comment period, we have a real opportunity to urge the DEA to begin unraveling decades of poor policy choices by descheduling a drug that shouldn’t have been criminalized in the first place.