Marijuana legalization advocates are anxiously awaiting the implications of recent election results in regards to potential federal marijuana policy changes. Several news outlets reported Wednesday that President-elect Joe Biden selected Marrick Garland as his nominee for U.S. attorney general.
Garland currently serves as a circuit judge of the U.S. Court of Appeals in Washington D.C. He was former president Barack Obama’s choice for a Supreme Court seat in 2016, but the nomination was halted by Senate Republicans.
Garland hasn’t made his views on marijuana especially clear, but some legalization advocates believe he’ll take a conservative stance, despite common consensus that his decisions will be a stark contrast to those made by former attorneys general, Jeff Sessions and William Barr.
Deferring to the DEA
There are indications in Garland’s judicial record that demonstrate his belief in deference to the DEA with marijuana scheduling. This could create a significant hurdle to rescheduling the drug given the agency’s strong opposition to such efforts for decades.
In a 2012 federal lawsuit case, Garland was one of three judges to uphold a denial by the DEA of a marijuana rescheduling petition. The court was to assess whether the agency meaningfully considered the therapeutic value of marijuana before deciding if it should remain in a Schedule I category, which means the drug isn’t believed to provide any medical benefits. The agency has repeatedly maintained that marijuana has no medical value and a high addiction potential. Comments made during Garland’s oral arguments suggest he believes the DEA is the appropriate agency to evaluate marijuana science and control scheduling policy.
“Don’t we have to defer to the agency” when it comes to evaluations of research into marijuana’s therapeutic value? Garland asked the attorney representing reform group Americans for Safe Access. “Defer doesn’t mean they win, but defer in the sense of we’re not scientists—they are—to the definition of what is an adequate and well-controlled study.”
Hope for Reform
Biden supports a slight but significant reclassification of marijuana to schedule II, and could be persuaded to pursue broader reform by other new administrative appointees who are in favor of legalization. In addition to Garland, Biden is also selecting two civil rights activists who embrace cannabis legalization to serve in other top posts at the Justice Department.
Former prosecutor and civil rights activist Vanita Gupta is expected to be chosen as associate attorney general. She favors cannabis legalization and has strongly condemned harsh criminalization policies for non-violent drug offenses.
In March 2018, Gupta said that the Trump administration is “seeking a decidedly punitive approach to America’s drug problem—one that seeks to increase already disproportionate sentences for drug offenses & employ the death penalty.”
“We tried the punitive and overly simplistic approach of the War on Drugs approach 30 years ago, and it failed. That’s why we’re seeing, in states around the country, a bipartisan push to recognize that substance use requires a public health approach,” she said. “We must reject efforts to further politicize this crisis. We cannot just do what feels good, or sounds good. We must take an evidenced-based approach to ending the opioid crisis.”
Biden’s selection of Kristin Clarke to lead the Justice Department’s Civil Rights Division is another positive indication of marijuana reform. Clarke backs marijuana legalization and is president of the Lawyers Committee for Civil Rights Under Law, a role in which Gupta served during the Obama administration.
Recently Biden selected a nominee for secretary of health and human services (HHS)—California Attorney General Xavier Becerra (D)—who is amenable to reform. And in his role, he could help facilitate rescheduling. While the Justice Department plays a key role in marijuana’s federal scheduling, a medical and scientific review by HHS is binding on the attorney general’s subsequent classification decision.
Through collective evaluation, Biden’s Justice Department picks could be viewed as a net positive for marijuana reform advocates, especially when compared to the Trump administration’s appointments for these positions. Garland may not be a champion for reform, but his views on marijuana are vastly different than former Attorney General Barr.
Aside from the Justice Department, reform advocates are closely following Congress since a bill to federally legalize marijuana passed the House last month and is expected to be taken up again in the next session. With the Democrats control of the House and recent reclamation of the Senate, there is a strong likelihood that a bill for federal marijuana legalization could be in Biden’s hands during the first half of his term.
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