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Six former Drug Enforcement Administration (DEA) heads and five former White House drug czars have sent a letter to the attorney general and current DEA administrator, voicing opposition to the top federal health agency’s recommendation to reschedule marijuana. They also made a questionable claim about the relationship between drug schedules and criminal penalties in a way that may exaggerate the potential impact of the incremental reform.
The letter, sent to Attorney General Merrick Garland and DEA Administrator Anne Milgram on Thursday, says that moving cannabis to Schedule III, as advised by the U.S. Department of Health and Human Services (HHS), would “supersize” the industry by providing tax relief and further normalizing the market.
It further asserted that “rescheduling marijuana, and thus reducing criminal penalties for marijuana trafficking, removes a key tool federal agents have to prosecute cartels.” But legal experts contest that claim, pointing out that penalties for trafficking marijuana (and various other drugs) are not directly tied to the scheduling status under the Controlled Substances Act (CSA).
The penalties for cannabis trafficking do vary based on weight. For example, trafficking up to 50 kilograms is punishable by a mandatory minimum sentence of at least five years in prison and a maximum $250,000 fine for a first offense; trafficking 1,000 kilograms carries a minimum 10-year sentence. But those are all specific to marijuana, so the idea that rescheduling would automatically reduce penalties is questionable and seems largely contingent on any future statutory changes by Congress.
“Unlike other substances where you change the schedule and the criminal penalties change accordingly, for certain certain substances—marijuana chiefly among them—that is not the case,” Shane Pennington, an attorney who specializes in federal drug policy and litigation against DEA, told Marijuana Moment in a phone interview on Friday. DEA “just went ahead and said, with respect to marijuana specifically, here are the penalties.”
The former heads of the federal drug agencies are “just incorrect about that” in their letter, he said.
Kevin Sabet, president of Smart Approaches to Marijuana (SAM), the prohibitionist group that posted the letter, has repeatedly argued that it’s a misconception that criminal penalties for federal drug offenses correspond with the drug’s specific scheduling status.
At one point, Sabet even criticized a member of Congress for allegedly misunderstanding the disconnect between scheduling status and penalties.
That said, some other scholars have maintained that marijuana rescheduling would result in reduced criminal penalties under the CSA. And there’s also the fact that, as a general rule, judges and prosecutors have discretion and could theoretically be more likely to levy lower penalties in the event of federal rescheduling even if they’re not legally bound to do so.
Marijuana Moment reached out to DEA for clarification, but a representative referred questions about criminal penalties and prosecutions to the Justice Department, which did not respond to a request for comment by the time of publication.
