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Pot Good, Fentanyl Very Bad – Update for December 23, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TRUMP DOES THE ‘WEAVE’ ON DRUG CRIMES

President Trump is proud of “the weave,” that oratorical puzzlement that sounds to some like Grandpa forgot to take his meds. Last week, Trump tried it on drug policy.

On Monday, Trump signed an executive order declaring fentanyl and its precursors  as “weapons of mass destruction.” Three days later, he signed another order directing federal agencies to reschedule marijuana as a Schedule III rather than Schedule I.

The fentanyl executive order instructs federal agencies, including the Depts of Justice, State, Treasury and Defense, to pursue fentanyl-related crimes more aggressively and to explore military cooperation with civilian law enforcement.

The Atlantic last week reported that while the

WMD designation may not have immediate legal implications for Trump’s military powers, it could potentially change how domestic drug cases are prosecuted. The use of a WMD against people or property in the U.S. carries a maximum sentence of life in prison; if someone dies, prosecutors can argue for the death penalty… That could impose a life sentence on any person who uses drugs laced with illicitly manufactured fentanyl, or anyone who gives drugs laced with illicitly manufactured fentanyl to their friend. As of now, the Trump administration has offered no guidance on how this might play out.

Earlier this year, Attorney General Pam Bondi claimed that the Trump administration’s fentanyl seizures had saved the lives of 258 million Americans — three-quarters of the population of the entire country. However, in September, Trump claimed that “300 million people died … from drugs” in 2024, which would be almost the entire US population, and about five times as many people as died that year from anything anywhere in the world. In fact, CDC numbers show that fentanyl was involved in 42,233 deaths between April 2024 and April 2025.

Drug defendants with fentanyl in their cases probably should not expect any break from this Administration any time soon.

A different story has played out on marijuana, although Trump’s executive order issued last Thursday on weed changes more for the cannabis industry’s bottom line than the architecture of prohibition.

Under the Controlled Substances Act, marijuana is currently placed in Schedule I, a category reserved for substances deemed to have “no currently accepted medical use.” That’s the most restrictive controlled substance category — more serious than where fentanyl is scheduled — and clearly at odds with at least 40 states that have legalized medical marijuana.

Trump’s executive order on Thursday prompts the Justice Department to hasten the rescheduling of marijuana as a Schedule III drug, alongside common prescription medications like Tylenol with codeine.

The Biden administration began rescheduling in the fall of 2022, but left the matter unfinished despite its promise to get it done. Trump’s order — which directs Attorney General Pam Bondi to hasten the process of loosening federal restrictions but does not include a timeline — comes after an intensive lobbying campaign from cannabis business interests.

Although the Wall Street Journal complained that by his executive order, Trump is going “for the Stoner Vote,” the President was lobbied hard by the commercial cannabis industry for the change, due to the banking and tax relief such a reclassification will bring to the business. “I’ve never been inundated by so many people as I have about this particular reclassification,” Trump said.

While Schedule III drugs can legally be prescribed, they still require Food and Drug Administration approval, which marijuana lacks. While, in theory, the order could reduce or eliminate some federal criminal penalties, statutory mandatory minimums would remain unchanged unless Congress amends 21 USC §§ 841 and 960. It is possible that some Sentencing Guidelines would change, but any such modification is several years off and would have to undergo an additional proceeding to become retroactive.

Even under §§ 841 and 960 as now written, federal prosecutors have not prioritized marijuana cases in recent years, especially regarding state-level approved marijuana commerce. As of January 2022, no one in federal prison was doing time solely for simple marijuana possession. Marijuana trafficking cases are down 58% since 2020, according to the U.S. Sentencing Commission.

What might this mean for 18 USC § 922(g)(3), which prohibits users of unlawful drugs from possessing guns? One firearms trade group has reminded its members that “state legalization of marijuana similarly has no effect on legality under 18 USC § 922(g)(3), and possession by a purchaser of a state medical marijuana card should be taken as evidence of unlawful use.”

What’s more, Trump taking a more accepting stance toward marijuana could prompt Congress to revisit the Controlled Substances Act, either by amending it to exempt state-level marijuana legalization regimes or by de-scheduling the drug from federal regulation altogether.

Trump’s order could also impact United States v. Hemani, currently pending in the Supreme Court. Hemani was convicted of a § 922(g)(3) offense, and SCOTUS has been asked to rule on whether disarming marijuana users complies with the 2nd Amendment. A decision is expected by June 2026.

Executive Order, Designating Fentanyl As A Weapon Of Mass Destruction (December 15, 2025)

Executive Order, Increasing Medical Marijuana and Cannabidiol Research (December 18, 2025)

The Atlantic, The New ‘Weapon of Mass Destruction’ (December 16, 2025)

Centers for Disease Control and Prevention, Provisional Drug Overdose Death Counts (September 17, 2025)

U.S. Sentencing Commission, Quick Facts – Marijuana Trafficking (FY 2024) (May 2025)

Roll Call, Press Gaggle: Donald Trump Speaks to Reporters Before Air Force One Departure – September 14, 2025 

The Hill, Trump signs executive order to expedite marijuana rescheduling (December 18, 2025)

CNN, Trump signs executive order expediting marijuana reclassification after lobbying from cannabis industry (December 18, 2025)

The Reload, Analysis: Trump’s Marijuana Moves Unlikely to Immediately Impact Gun Owners (December 21, 2025)

~ Thomas  L. Root

Thanksgiving Week: A Heaping Serving of Yams – Update for Thanksgivng Day 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

YAMS

A true yam (as opposed to a sweet potato) is a monocot, a vigorous herbaceous, perennially growing vine related to lilies and grasses.

yams241128Speaking of “grass,” the marijuana kind, reports last week suggest that Biden’s promise to reclassify marijuana as a Schedule III drug – his latest promise to undo the war on drugs – might be in trouble .

Marijuana reform advocates last week asked an Administrative Law Judge (ALJ) to remove the DEA from its own hearing. They argue the agency has improperly communicated with antimarijuana groups in a bid to torpedo the Biden administration’s proposal. The advocates contended that “prominent doctors, researchers and state regulation experts are not being allowed to testify in a hearing” that will enable the ALJ to recommend whether rescheduling is appropriate.

Last week, the Washington Post reported, ALJ “signaled he will side with the DEA, writing the advocates’ request “adds nothing” and “presents little more than an ad hominem distraction.”

Under the reclassification proposal, marijuana would not be legalized federally like alcohol or tobacco, but would move to Schedule III, a category including prescription drugs such as ketamine, anabolic steroids and testosterone. That could lead to a lessening of Guidelines sentencing ranges, but even if that happens, it won’t happen immediately.

The ALJ pushed back the hearing from December 2nd to some time in January or February because it was unclear whether the 25 witnesses submitted by the DEA favored or opposed reclassification, or even why they should be allowed to testify, according to the ruling.

fail200526Reason magazine last week chronicled Biden’s criminal justice failures: “His voluminous 2020 criminal justice platform (now scrubbed from his website) advocated eliminating mandatory minimum sentences, cash bail, and the federal death penalty.” Another article noted that besides the death penalty, Biden “promised to “eliminate mandatory minimums”; “end, once and for all, the federal crack and powder cocaine disparity”; “decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions”; and “use the president’s clemency power to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes.”

So far, Joe’s 0 for 5, and number 6 – use of clemency – hangs in the balance, with 54 days left.

Washington Post, DEA faces legal challenge as uncertainty clouds plan to reclassify marijuana (November 19, 2024)

Reason, Biden Failed To Deescalate the Drug War (November 22, 2024)

– Thomas L. Root

Matt Gaetz: Mere Anarchy at the Dept of Justice – Update for November 19, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THINGS FALL APART

thingsfall241119I tuned out the poetry we studied in high school English, which makes me wonder why President-elect Donald Trump’s announcement last week that Matt Gaetz would be his Attorney General made me recall W.B. Yeats’ work, The Second Coming:

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world;

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned…

Trump has vowed to execute every prisoner on federal death row, to expand the federal death penalty to include drug traffickers and migrants who kill U.S. citizens, to use the military to round up and run out immigrants, and to grant all law enforcement officers immunity from criminal prosecution.

Writing in The Watch last week, Radley Balko observed that Trump “of course promised to weaponize federal law enforcement to settle grudges, exact retribution, and protect his interests.”

Congressman Matt Gaetz (R-FL) is slated to serve as Attorney General. Gaetz, whose legal career spans about three years as a junior associate in a small Florida law firm, has never tried a case nor managed an enterprise, but he’s intended to run the Dept of Justice, of which the Bureau of Prisons is a part.

pervert160728In 2020, Gaetz was accused of child sex trafficking and statutory rape over claims that he paid a 17-year-old high school student for sex. Following an investigation, DOJ decided not to seek charges, concerned that it might not be able to prove the charge beyond a reasonable doubt. Gaetz resigned from the House last week just before the House Ethics Committee was to release a report on the sex charges, alleged drug use and other misconduct.

One DOJ official said of the nomination, “What the f— is happening?!” Another said that Gaetz is the “least qualified person ever nominated for a position in the Department of Justice.”

MSNBC admitted that “in a sense, everybody is unqualified” to serve as Attorney General, because DOJ “is so deep, broad and complex that no one can come in truly prepared for all of it. Nobody comes in knowing everything about tax or antitrust or civil rights or criminal or civil or environmental work. They do not know the intricacies of the work of its many divisions, from the Federal Bureau of Prisons to the Federal Bureau of Investigation.” But, MSNBC argued, AGs need “three qualities: integrity, judgment and independence. With those qualities, you can handle the job… [W]ith Gaetz, you might end up with somebody who is wholly unqualified for the job coupled with somebody who lacks integrity, judgment and independence.”

But why should federal prisoners care? It might be beneficial to have a man who had once been a DOJ target running things.

dungeon180627Don’t count on it. As a state legislator, Gaetz sponsored a bill requiring the Florida governor to sign death warrants for prisoners on death row as soon as their appeals were exhausted. Last July, Gaetz toured El Salvador’s notorious Terrorism Confinement Center where, CNN reported, “convicts and pretrial detainees “spend 23½ hours a day in bleak group cells, eat a bland meatless diet and have just 30 minutes a day for exercise or Bible class.”

“There’s a lot more discipline in this prison than we see in a lot of the prisons in the United States,” Gaetz said at the time. “We think the good ideas in El Salvador actually have legs and can go to other places and help other people be safe and secure and hopeful and prosperous.”

In other transition news, Sen. John Thune (R-SD) will serve as Majority Leader—the person who will control which bills are voted on—in the new Senate, which convenes on Jan 3, 2025. Thune has consistently opposed even modest marijuana reform proposals, once calling legalization a “dangerous path.”

In 2021, Thune acknowledged that marijuana is an “area that’s still evolving, and our country’s views on it are evolving,” adding that “how we deal with it nationally, is still an open question.”

President Biden promised in 2022 that rescheduling marijuana from Schedule I to Schedule III – which could lead to the easing of criminal penalties – would be done by the end of 2024. A DEA hearing on the matter is set for December 4. It’s not clear that final rules can be rolled out before a new and possibly hostile Congress is seated.

Radley Balko – Substack, The “broligarch” threat to criminal justice reform (November 13, 2024)

NBC, Justice Dept. employees stunned at Trump’s ‘insane,’ ‘unbelievable’ choice of Matt Gaetz for attorney general (November 10, 2024)

MSNBC, An attorney general needs 3 qualities to be successful. Matt Gaetz doesn’t even have one. (November 14, 2024)

CNN, Matt Gaetz would oversee US prisons as AG. He thinks El Salvador’s hardline lockups are a model (November 14, 2024)

Marijuana Moment, Every GOP Senate Majority Leader Candidate Opposes Marijuana Legalization (November 12, 2024)

– Thomas L. Root

Federal Marijuana Possession Expungement Proposed

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BILL TO CLEAN SLATES FOR POT OFFENSES INTRODUCED

Senators Robert Casey (D-PA) and Rand Paul (R-KY) have introduced bipartisan legislation intended to give millions of Americans a “clean slate” by sealing the criminal records of low-level and non-violent offenders who have successfully completed their sentences.

mario170628The Clean Slate Act, S.5266, would automatically seal the federal records of individuals convicted of simple drug possession and other low-level, nonviolent crimes involving marijuana, intended “to remove major barriers many Americans face in finding employment, securing housing, and accessing education,” Casey said in a press release. “This legislation would help more than 70 million Americans fully participate in society and provide them with a second chance to contribute to their communities and support their families.”

The measure is a companion bill to a House version filed 18 months aho by Reps Lisa Blunt Rochester (D-DE) and Nancy Mace (R-SC). That bill, H.R. 2930, has not yet made it to the House floor. The legislation has been introduced over the last several sessions, and a previous version advanced through the House Judiciary Committee in 2022 but was never voted on by the full House.

With only 20 more work days for the House and 24 days for the Senate scheduled before the end of the year, passage is unlikely.

Press Release, Casey, Paul Introduce Bipartisan Legislation to Seal Records of Low-Level, Nonviolent Offenses (September 26, 2024)

S 5266, A bill to require automatic sealing of certain criminal records, and for other purposes  (September 25, 2024)

H.R. 2930, Clean Slate Act

Marijuana Moment, Federal Marijuana And Drug Convictions Would Be Automatically Sealed Under New Bipartisan Senate Bill (September 27, 2024)

– Thomas L. Root

Biden’s Clemency Clock Is Running Out – Update for September 27, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CALL FOR BIDEN TO STEP UP ON CLEMENCY

clemencypitch180716In an opinion piece in last week’s New York Times, law professors Rachel Barkow (a former Sentencing Commission member) and Mark Osler – both recognized federal clemency experts – called on President Joe Biden to reverse his “paltry record on clemency” by creating a record in his final four months in office “he can point to with pride.”

Biden has granted 25 pardons and commuted 131 sentences, “a mere 1.4% of the petitions he has received,” they wrote. “Clemency is more important than ever in an era of grossly excessive punishments and mass incarceration. Timidity is not a path to legacy, and the accumulated harms of presidents’ ignoring for years the power to issue clemency can be seen in the over 8,000 petitions that are pending, many of them more than five years old.”

So Biden’s shakeup of the Office of Pardon Attorney last December, which included throwing out overripe clemency petitions, resulted in about 9,800 petitions being rejected. Another 2,000 have been added since then. As of today, DOJ reports, 8,678 petitions are pending.

obtaining-clemencyBarkow and Osler suggest that Biden should commute the death sentences of the 40 federal prisoners on death row to life in prison. Another group deserving of commutation, they suggest, are the inmates at home on CARES Act home confinement. Finally, they argue that “Biden should release those still in prison for trafficking marijuana, which means manufacturing or distributing it, or both. Those are now legal activities in a number of states. His blanket pardon for only possession and use was needlessly limited, and he should expand it to its logical and just conclusion.”

Stephen Post from the Last Prisoner Project noted in USA Today last week that about 3,000 individuals are still incarcerated in federal prison for nonviolent marijuana offenses.

New York Times, Biden Needs to Work on His Clemency Legacy (September 18, 2024)

USA Today, Biden promised no jail time for weed. He’s running out of time to pardon cannabis convicts (September 15, 2024)

– Thomas L. Root

Everybody’s for Pot – Update for September 16, 2024

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FEDERAL MARIJUANA REFORM GAINS TRACTION

marijuana160818Donald Trump last week signaled support for a federal policy shift to reclassify marijuana as a less dangerous drug, putting his position in line with that of his Democratic opponent, Kamala Harris.

Unlike Harris, Trump has not gone so far as to endorse repealing federal pot prohibition, a move that voters overwhelmingly favor. But his statements on marijuana reform suggest he recognizes the political potency of this issue.

According to the US Cannabis Council, this marks the first time that both major-party presidential candidates have supported broad cannabis reform.

Trump, the Republican presidential nominee, posted on his social media platform last week that “I believe it is time to end needless arrests and incarcerations of adults for small amounts of marijuana for personal use… We must also implement smart regulations, while providing access for adults to safe, tested product.”

Trump also has said he supports the Biden administration’s plan to move marijuana from Schedule I of the Controlled Substances Act (CSA) – the most restrictive category – to Schedule III, which includes prescription drugs such as ketamine, Tylenol with codeine, and anabolic steroids. “As President,” Trump wrote, “we will continue to focus on research to unlock the medical uses of marijuana [as] a Schedule 3 drug.”

That reclassification would facilitate cannabis research and be a financial boon to the cannabis industry. However, the sale of marijuana would remain a criminal offense under the CSA.

marijuana221111When Biden proposed rescheduling in October 2022, he promised to complete the job by the end of 2024. Two weeks ago, the Drug Enforcement Administration announced that it would hold a public hearing on the marijuana rescheduling ion December 2. That makes completing the rescheduling before 2025 unlikely.

Last week, The Last Prisoner Project and bipartisan 420 Unity Coalition partners launched the #Countdown4Clemency campaign, calling on Biden to commute the sentences of an estimated 3,000 prisoners doing time for marijuana convictions.

“Time is running out on President Biden’s term, but it is not too late for him to undo the harms inflicted on families impacted by cannabis criminalization,” LPP Executive Director Sarah Gersten said. “With his clemency powers, the president has the opportunity to right history and restore justice by fulfilling his promise that no one should be in jail for cannabis.”

Associated Press, Trump signals support for reclassifying pot as a less dangerous drug, in line with Harris’ position (September 9, 2024)

Reason, Trump Endorses Federal Marijuana Reforms and Reiterates His Support for Legalizing Pot in Florida (September 9, 2024)

#Countdown4Clemency Campaign Calls on Biden to Keep Promise, Free 3,000 People Incarcerated for Cannabis (September 10, 2024)

Federal Register, Schedules of Controlled Substances: Rescheduling of Marijuana (89 FR 70148, August 29, 2024)

– Thomas L. Root

Feds To Reschedule Marijuana As Prescription Drug – Update for May 3, 2024

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MARIJUANA BECOMING OFFICIALLY ‘COOL’

mrnatural240503The Justice Department last Tuesday said that it had recommended easing restrictions on marijuana in what could amount to a major change in federal policy.

A DOJ spokeswoman said the proposed rule, which hasn’t yet been made public, would downgrade marijuana from Schedule I to Schedule III, making it obtainable with a prescription.

The change does not end the criminalization of the drug. However, it is a significant shift in the government’s view of the safety and use of marijuana for medical purposes and reflects President Biden’s effort to liberalize marijuana policy in a way that puts it more in line with the public as increasingly more Americans favor legalizing the drug. The proposal would recognize the medical uses of marijuana and acknowledge it has less potential for abuse than some of the nation’s more dangerous drugs.

Rescheduling would not legalize marijuana outright for recreational use. But there can be little doubt that such a change–recreational cannabis (the politically popular term for marijuana) is now legal in 24 states–is coming.

The change may also lead to beneficial changes in Section 2D1.1 of the U.S. Sentencing Guidelines, where the base offense level for marijuana could drop in response to its falling from Schedule I to III.

In October 2022, Biden pardoned thousands of people convicted of simple marijuana possession under federal law and called upon regulators to review whether the drug should be reclassified, saying “it doesn’t make sense” that the government controls pot more tightly than cocaine or fentanyl.

marijuanahell190918Once the Office of Management and Budget signs off, the DEA will take public comment on the plan to move marijuana from its Schedule I–alongside heroin and LSD–to Schedule III, alongside ketamine and some anabolic steroids. After public comment and review by an administrative judge, the agency will publish the final rule.

“Today, the Attorney General circulated a proposal to reclassify marijuana from Schedule I to Schedule III,” DOJ Director of Public Affairs Xochitl Hinojosa said in a statement. “Once published by the Federal Register, it will initiate a formal rulemaking process as prescribed by Congress in the Controlled Substances Act.”

The Los Angeles Times said, “Late last year, Biden pardoned people who were convicted of using marijuana on federal land. That tiny step was merely a down payment on his promise of decriminalization. So is the Justice Department’s most recent move. The federal government should pick up the pace.”

Some in the government may have done so. Last Wednesday, Senate Majority Leader Charles Schumer, (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR), and Sen Cory Booker (D-NJ) reintroduced the Cannabis Administration and Opportunity Act, legislation to end federal marijuana prohibition by removing it totally from the Controlled Substances Act.

The bill also aims to empower states to create their own cannabis laws; ensure federal regulations protect public health and safety; and prioritize restorative and economic justice, according to the sponsors.

marijuana221111While the DEA’s move to reclassify marijuana is a “necessary step” that’s “long overdue,” Schumer said, it’s not the end of the story. “It’s not all we need to do,” he said. “It’s time for Congress to wake up to the times and do its part by passing the cannabis reform that most Americans have wished for. It’s past time for Congress to catch up with public opinion and to catch up with the science.”

New York Times, Justice Dept. Recommends Easing Restrictions on Marijuana (April 30, 2024)

Wall Street Journal, Biden Administration Aims to Reclassify Marijuana as Less Dangerous Drug (April 30, 2024)

Associated Press, US poised to ease restrictions on marijuana in historic shift, but it’ll remain controlled substance (April 30, 2024)

Los Angeles Times, Editorial: Reclassifying marijuana is not decriminalization, but is a welcome step in that direction (May 1, 2024)

Cannabis Business Times, Senate Democrats Introduce Bill to Federally Legalize Cannabis (May 1, 2024)

S.4226, A bill to decriminalize and deschedule cannabis, to provide for reinvestment in certain persons adversely impacted by the War on Drugs, to provide for expungement of certain cannabis offenses, and for other purposes (May 1, 2024)

– Thomas L. Root

Progressives for Pot Clemency – Update for March 22, 2024

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CONTINUED CALLS FOR MARIJUANA CLEMENCY

Thirty-six liberal House members urged President Biden to grant clemency to federal inmates for nonviolent marijuana offenses.

“The continued incarceration of these individuals continues the racist legacy of the War on Drugs, contradicts the current societal and legal trends regarding marijuana, and represents an unnecessary burden on our morals and justice system,” they said in a letter to the President. “Until the day Congress sends you a marijuana reform bill to sign, you have a unique ability to lead on criminal justice reform and provide immediate relief to thousands of Americans.”

marijuana221111At a White House roundtable on marijuana last Friday, Vice President Kamala Harris called for rescheduling marijuana, which should be completed by the DEA this year. Marijuana is currently classified as a Schedule I drug, in the same category as heroin. The White House is seeking to change that to Schedule III alongside testosterone and ketamine.

“Marijuana is considered as dangerous as heroin, and more dangerous than fentanyl, which is absurd,” Harris said. “Not to mention patently unfair.”

Politico reported last Friday, “The White House event is the latest sign that the Biden administration plans to tout its efforts to overhaul federal marijuana policies ahead of the presidential election. Biden also cited his moves to pardon federal marijuana offenders and loosen federal weed restrictions during last week’s State of the Union address. A whopping 70 percent of Americans back marijuana legalization, and that position is particularly popular with young voters, a crucial demographic that Biden is struggling to maintain support from.”

Letter to President Biden (March 13, 2024)

Politico, Vice president criticizes federal cannabis restrictions during White House weed event (March 15, 2024)

– Thomas L. Root

Biden FDA Delivers On Pot Rescheduling; Now for the DEA – Update for September 7, 2023

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FOOD AND DRUG ADMINISTRATION PROPOSES DROPPING MARIJUANA TO SCHEDULE III

marijuana221111The Dept of Health and Human Services’ Food and Drug Administration last week recommended that the Drug Enforcement Administration significantly loosen federal restrictions on marijuana, yet stopping short of proposing that pot be removed completely from the Controlled Substances Act.

HHS Assistant Secretary Rachel Levine wrote in a letter to the DEA that the FDA wants the drug moved from Schedule I to Schedule III under the CSA. As part of the review process, an HHS spokesperson told Politico last week, “HHS conducted a scientific and medical evaluation for consideration by DEA. DEA has the final authority to schedule or reschedule a drug under the Controlled Substances Act. DEA will now initiate its review.”

President Biden rolled out new initiatives on marijuana last October, pardoning all prior federal simple possession offenses (none of whom was in federal prison at the time) and asking HHS and the Attorney General to review how marijuana is scheduled based on its medical use. While the DEA is not required to follow HHS’s recommendation, it is unlikely that the agency will buck the President, who has made this a White House priority.

Reclassification is a step short of legalizing marijuana entirely, but it would mark a critical shift away from marijuana’s status as a Schedule I substance. Schedule I includes drugs with high risk of abuse that have no legitimate purpose, like heroin, LSD and ecstasy. Schedule III substances, such as ketamine, are seen as less dangerous and can be obtained legally with a prescription.

mario170628The effect of dropping marijuana to Schedule III might be a Sentencing Commission rewrite of USSG § 2D1.1 on marijuana offenses. Changing statutory minimums for marijuana set out in 21 USC § 841(b)(1), however, would require action by Congress.

DEA review will be complete within the next year.

Bloomberg, US Health Officials Urge Moving Pot to Lower-Risk Tier (August 30, 2023)

Politico, Slightly higher times: Biden administration moves to loosen weed restrictions (August 30, 2023)

– Thomas L. Root

They Begged His Pardon: Biden Finally Grants Short List at Year’s End – Update for January 5, 2023

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BIDEN GRANTS HANDFUL OF PARDONS

Maybe I was too hasty in criticizing President Biden last week for granting no Christmas clemency petitions, with about 18,000 petitions for commutation or pardon pending (many for years).

pardon160321Biden finally issued pardons to six people last Friday, four for various low-level drug offenses, one for the illegal sale of whiskey, and one to an 80-year-old woman who killed her husband 47 years ago. Three of the crimes had occurred at least a quarter century ago, and the fourth – an Air Force enlisted man convicted of taking (but not distributing) Ecstasy – happened about 20 years ago.

The White House statement said the pardoned people had served sentences and “demonstrated a commitment to improving their communities and the lives of those around them.”

The pardons came on the last business day of the year. In October, Biden pardoned thousands of unnamed people convicted of simple marijuana possession under federal law. In April, Biden granted three pardons and granted 75 commutations.

Two of the five pardoned last week served about two years in prison. Three of the other four served under a year, and the last one got probation.

At trial, the woman who killed her husband – convicted under District of Columbia law – was denied the right to argue that he had beaten her. Her appeal, the White House said, “marked one of the first significant steps toward judicial recognition of battered woman syndrome, and her case has been the subject of numerous academic studies.”

clemencyjack161229Two years into Biden’s Administration, the theme of his clemency policy seems to be that pardons will issue, favoring very simple drug and politically-preferred offenses, when the crime happened a long time ago.  Commutations – which require actually letting people out of prison – seem to be disfavored by this White House.

A day before the pardon announcement, White House Domestic Policy Council Director Susan Rice said that Biden’s marijuana pardons and scheduling directive were among the administration’s top accomplishments in 2022. Biden issued a scheduling review order in October directing the Dept of Health and Human Services to consider rescheduling pot to a lower-level controlled substance.

Associated Press, Biden pardons 6 convicted of murder, drug, alcohol crimes (December 30, 2022)

White House, Clemency Recipient List (December 30, 2022)

Ibn-Thomas v. United States, 407 A.2d 626 (1979)

Marijuana Moment, Top White House Official Lists Biden’s Marijuana Pardons And Scheduling Review Among Top 2022 Administration Achievements (December 30, 2022)

– Thomas L. Root