States Coalescing Around Petitioning DEA to Reschedule Marijuana

The Colorado Independent reports today that Colorado is joining Rhode Island and Washington State in “(petitioning) the federal government to change the schedule of marijuana under the Controlled Substances Act, a move they claim will move the conflict between federal drug laws and state laws that allow the establishment of medical marijuana dispensaries. Colorado will file its own request before the end of the year.”

Marijuana (also known as cannabis) is currently a schedule I controlled substance in the Drug Enforcement Administration (DEA) regulations, 21 C.F.R. Section 1308.11. According to the DEA, this scheduling designation means:

(Schedule 1 substances) have a high potential for abuse, have no currently accepted medical use in treatment in the United States, and there is a lack of accepted safety for use of the drug or other substance under medical supervision.

Drugs listed in schedule I have no currently accepted medical use in treatment in the United States and, therefore, may not be prescribed, administered, or dispensed for medical use. In contrast, drugs listed in schedules II-V have some accepted medical use and may be prescribed, administered, or dispensed for medical use.

Rhode Island and Washington State submitted their petitions several weeks ago, with support from their respective governors (Lincoln Chaffee and Christine Gregoire). Each state has a strong history of leading in this policy area.

Meanwhile, Colorado legalized medical marijuana in 2000 through voter approval of Amendment 20, which was later amended by SB 10-109, House Bill (HB) 10-1284 and HB 11-1043. Colorado was essentially dragged into joining the other states by complying with a two-year old state law (HB 10-1284) that requires:

In recognition of the potential medical value of medical marijuana, (the Department of Revenue) make a request by January 1, 2012 to the federal Drug Enforcement Administration to consider rescheduling, for pharmaceutical purposes, medical marijuana from a schedule I controlled substance to a schedule II controlled substance.

Unlike in Rhode Island or Washington State, Colorado Governor John Hickenlooper will not sign the petition. Hickenlooper is instead opting to have the Department of Revenue submit the petition.

While three states have coalesced around this issue so far, more states are expected to join since 16 states (including the District of Columbia) have now passed medical marijuana laws. In recent weeks Vermont Governor Peter Shumlin and New Jersey Governor Chris Christie have made public statements essentially supporting a re-evaluation of the federal government’s so-called “War on Drugs.”

Changes in state law could have a dramatic impact on law enforcement and correctional policy across the country. States are not required to enforce federal law, so they can get around DEA scheduling, however the specter of federal enforcement haunts medical marijuana patients, producers, and providers. According to the latest U.S. Sentencing Commission data, drug offenses are the second largest category of federal convictions with 26% of those offenders being convicted for marijuana-related offenses. With marijuana legalization ballot measures anticipated in (at least) California and Colorado in the upcoming election, this will likely be a high-profile issue in 2012.