Published March 1, 2023
By Ben Adlin
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U.S. Attorney General Merrick Garland said on Wednesday that the Department of Justice is “still working on a marijuana policy” and that federal health officials are currently taking the lead on a broader ongoing review of cannabis’s federal scheduling status that was directed by President Joe Biden.
“I think that it’s fair to expect what I said at my confirmation hearing with respect to marijuana and policy, that it will be very close to what was done in the Cole Memorandum,” he said, referring to an Obama-era policy that directed federal prosecutors to generally not interfere with state cannabis laws but which was later rescinded by Attorney General Jeff Sessions during the Trump administration.
“We’re not quite done with that yet,” Garland said of the cannabis policy review, adding that finalizing a now-completed memo on crack cocaine prosecutions was a more pressing priority for the department.
Sen. Cory Booker (D-NJ), whose question at a Senate Judiciary Committee hearing prompted the new comments from the attorney general, replied that he’s “very eager to get to hear more about” the administration’s plan for marijuana while “more and more states, red and blue, are moving” to change their cannabis laws.
“It’d be good to hear that as quickly as possible,” the senator said.
Separately, Garland said that the process surrounding pardons that Biden granted to people who have committed cannabis possession offenses is “still working its way through the system to get the final certificates” to people so they can demonstrate they were given the presidential relief.
The attorney general misspoke by calling the clemency action “commutation,” which is a process that cuts short prison sentences and is separate from a pardon, which represents a formal forgiveness for crimes but does not free anyone from incarceration.
Last year Biden issued a directive to federal agencies, including DOJ and the Department of Health and Human Services (HHS), calling on officials to review marijuana’s scheduling under the Controlled Substances Act (CSA) and issuing a mass pardon for people who have committed federal cannabis possession offenses.
The attorney general told senators on Wednesday that “HHS is working on the question of scientific analysis of marijuana.”
Some in Congress feel Garland has been slow-walking setting a new cannabis stance at DOJ. More than four years after Sessions rescinded the Cole memo, the Justice Department has yet to articulate a coherent posture toward state-legal markets, which are still prohibited under federal law.
As time has passed since Biden took office, and as more states pass their own legalization measures, more lawmakers have begun encouraging the White House to take an active role in cannabis reform.
Last June, in response to prodding from Sen. Brian Schatz (D-HI) at an Appropriations Committee hearing, Garland said the Justice Department was still “examining a wide range of issues that relate to marijuana and its production, sale and use, and we intend to address these issues in the days ahead.” But formal DOJ guidance has yet to materialize.
This week, Rep Earl Blumenauer (D-OR) began circulating a sign-on letter challenging Biden Administration officials, specifically Garland and HHS Secretary Xavier Becerra, to provide clear and compelling reasons for whatever decisions they reach on cannabis policy.
“To ensure accountability in your conclusions—which has been absent in so much of the history of federal marijuana regulation—transparency is key,” Blumenauer’s draft letter says. “We urge you to make available for public review and comment any evidence cited to demonstrate marijuana is more prone to drug abuse than descheduled substances already regulated at the state level.”
For his part, Blumenauer is urging the administration to remove cannabis from the CSA entirely, treating it more like other legal, regulated substances.
Garland, who was nominated to became a Supreme Court justice under president Barack Obama but was blocked from consideration by the GOP-controlled Senate at the time, took office as Biden’s AG in March 2021. On his way to being confirmed, he told senators during a hearing that federal prosecution of people acting in compliance with state marijuana laws was not “a useful use of limited resources.” He later doubled down on that position in written testimony in support of his confirmation.
“Criminalizing the use of marijuana has contributed to mass incarceration and racial disparities in our criminal justice system,” the testimony said, “and has made it difficult for millions of Americans to find employment due to criminal records for nonviolent offenses.”
Despite the lack of any formal DOJ guidance so far, Garland has said since taking office that marijuana use in legal states is not a department priority. “The department’s view on marijuana use,” he said at a House hearing in 2021, “ is that enforcement against use is not a good use of our resources.”
More broadly, Garland said that marijuana enforcement is “probably not a good use of our resources where it is regulated by the state.”
At a separate Senate hearing last April, the attorney general again reiterated that marijuana prosecutions are “not an efficient use of the resources given the opioid and methamphetamine epidemic that we have.”
“I laid this out in my confirmation hearing, and my view hasn’t really changed since then,” he said. “The Justice Department has almost never prosecuted use of marijuana, and it’s not going to be.”
Neither businesses nor individuals complying with state law, however, have any real legal protection from federal law—except for a congressionally enacted rider cover medical cannabis programs only—and prohibition still creates a host of other obstacles for state-legal businesses, consumers and patients.
Meanwhile, the Biden Administration is touting its limited cannabis reforms as progress. Earlier this week, at an event commemorating the end of Black History Month, the president highlighted his move to pardon people for federal, low-level marijuana possession offenses.
“I’m keeping my promise,” he said. “No one should be in prison for the mere possession of marijuana.”
The mass pardon covers people who have committed non-violent federal cannabis possession offenses at the federal level and under Washington, D.C. law. It did not free anyone who is currently incarcerated and excludes people who were convicted of selling cannabis, among other groups that advocates are seeking relief for.
Cannabis reform activists have also expressed frustration that the Department of Justice (DOJ) has still not yet made available application forms for people who wish to obtain certificates demonstrating that they are covered by the pardon proclamation. Pardon Attorney Elizabeth Oyer said in December that the online application would be posted “very soon,” but that has not yet happened.
A series of polls have shown that Americans strongly support the president’s pardon action, and they also don’t think that marijuana should be federally classified as a Schedule I drug.
Biden also signed a marijuana research bill into law in December, making history by enacting the first piece of standalone federal cannabis reform legislation in U.S. history.