Reschedule Marijuana, Says Former Attorney General Eric Holder

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The man who once had the power to initiate a federal reclassification of marijuana now says he supports it.

“I certainly think it ought to be rescheduled,” Eric Holder, the former U.S. attorney general, said in a newly published interview. “You know, we treat marijuana in the same way that we treat heroin now, and that clearly is not appropriate.”

Cannabis is currently classified under Schedule I of the Controlled Substances Act, the most restrictive category, which is supposed to be reserved for drugs with no medical value and a high potential for abuse.

As attorney general, Holder could have directed the federal government to begin reviewing that status but did not do so before leaving office last April. His successor, Loretta Lynch, has said she personally opposes legalizing marijuana but has called the Obama administration’s approach to generally letting states enact their own laws without interference “effective.” She hasn’t clearly weighed in on the question of rescheduling.

While still heading up the Justice Department, in September 2014, Holder called rescheduling “something that I think we need to ask ourselves, and use science as the basis for making that determination.”

Holder’s new comments on the issue came as part of a PBS Frontline special on heroin that debuted on Tuesday.

In the interview, which was conducted last September but kept under wraps until now, Holder also says it’s time for the U.S. to consider decriminalizing marijuana.

“I think that certainly that ought to be a part of the conversation,” he said. “You know, where do we want to be as a nation? Now, there’s certain drugs I just can’t see. It’s hard for me to imagine ever decriminalizing crack cocaine, drugs like that. But the whole question of should marijuana be decriminalized, I mean, that’s a conversation I think that we should engage in.”

While only Congress can change or remove criminal penalties on marijuana, under the Controlled Substances Act the attorney general can unilaterally begin the process that could lead to the drug’s rescheduling by directing the secretary of Health and Human Services to review scientific information on its effects and risks. After receiving the health analysis, the attorney general could then make a scheduling determination.

While part of the Obama administration, Holder often deflected questions about his administrative power on rescheduling by focusing on the fact that Congress could also act on the issue.

Last February, for example, he said reclassification “is something that would be well informed by having Congressional hearings and Congressional action informed by a policy determination that I think the administration would ultimately be glad to share.”

In November 2014 he said, “I think the question of how these drugs get scheduled and how they are ultimately treated is something for Congress to work on.”

President Obama himself seems to share that reluctance to take administrative action on the issue. In an interview with CNN in January 2014, he called rescheduling “a job for Congress.” When interviewer Jake Tapper pointed out that federal agencies have the power to reclassify drugs, the president refused to believe it. “It’s not something by ourselves that we start changing,” he said. “No, there are laws undergirding those determinations.”

Just last month, the president reportedly told a member of Congress, “If you get me a bill [to reschedule marijuana], and get it on my desk, I’ll probably sign it.”

Even in the new PBS interview, Holder still alludes to Congressional action when speaking about rescheduling.

Moving marijuana out of Schedule I — the most restrictive category — to Schedule III or lower would have a number of impacts.

Such reclassification, for example, would protect federal employees who use marijuana from a Reagan-era executive order that puts them at risk of losing their jobs.

Additionally, only drugs under Schedules I and II are affected by the tax provision (known as “280E”) that prevents state-legal businesses from deducting normal operational expenses from their federal taxes.

Rescheduling would also expand opportunities for scientific research into marijuana’s medical benefits. Douglas Throckmorton, deputy director of the Food and Drug Administration’s Center for Drug Evaluation and Research, testified before the Senate last June that marijuana’s Schedule I status means there are “additional steps” that scientists wishing to study it must take.

Even moving cannabis down to just Schedule II would solve difficulties the U.S. Postal Service is causing for some newspapers that attempt to mail publications containing marijuana ads.

And more broadly, some advocates say that rescheduling move by the Obama administration would send a strong message to state lawmakers and international leaders that the federal government is finally beginning to address decades of mistakes on marijuana policy, which could spur further reforms.

About Author

Tom Angell covers policy and politics for Marijuana.com. Separately, he serves as chairman of the nonprofit organization Marijuana Majority, which works to ensure that elected officials and the media treat legalization as a serious, mainstream issue. Marijuana Majority led the effort to get the U.S. Conference of Mayors to pass a resolution telling the federal government to respect state marijuana laws, and orchestrated the first-ever endorsement for marijuana legalization by a U.S. Supreme Court justice (John Paul Stevens). Previously, Tom worked for Law Enforcement Against Prohibition and Students for Sensible Drug Policy. (All organizations are listed for identification purposes only.)

  • knowa1

    Let history remember him, that he once could of done it with a stroke of the pen. These prohibitionist will be remembered not as the free french but the naxi ss gestapo.

    • Kathleen Chippi

      we won’t forget fast and furious guns sales to drug cartels…..

  • When the pay is good why rock boat unless u a real government worker, 90 percent of them very selfish and should not be given better benefits than the public

  • De-scheduling, not rescheduling is the answer. Schedule 2 is not much better than it is now. A history of no deaths from overdose (ever) and an LD50 that is out of sight begs for a classification of the lowest level.or none at all.

    • Kathleen Chippi

      yes aspirin is not on schedule and it kills 3,500 people a year…..

      • Swen.Ardere

        I can grow plants in my garden–legally–that can kill people. I can
        brew beer in my home, or vint wine, or distill strong spirits, which
        have great potential for addiction and bodily harm when misused. But I
        can’t legally grow Cannabis or even in my state be caught using it as a pain killer for chronic conditions I have, without going to jail. For a f***ing PLANT

    • Kathleen Chippi

      The CSA is a set of rules and regulations. The federal government is
      REQUIRED in the CSA to prove to “we the people” that ANY substance
      placed in the CSA schedule meets ALL the requirements of that schedule.
      The feds have 1 year with a one time only 6 month extension to do that
      or the substance is not lawfully on schedule. The federal research on
      cannabis was done in 1970-71 by the Shafer Commission. The Shafer
      Commission research clearly showed cannabis was NOT schedule I or II,
      yet the feds have been VIOLATING the CSA itself for the last 40 plus
      years by ‘claiming’ it is schedule I.

  • metalbuoy

    Douchebag.. too little too late. As knowa1 stated, may he be remembered as a guy who could have done something about racist drug laws but didn’t care enough to bother until it was too late to be able to do anything whatsoever, except bitch.

  • Kathleen Chippi

    The CSA is a set of rules and regulations. The federal government is REQUIRED in the CSA to prove to “we the people” that ANY substance placed in the CSA schedule meets ALL the requirements of that schedule. The feds have 1 year with a one time only 6 month extension to do that or the substance is not lawfully on schedule. The federal research on cannabis was done in 1970-71 by the Shafer Commission. The Shafer Commission research clearly showed cannabis was NOT schedule I or II, yet the feds have been VIOLATING the CSA itself for the last 40 plus years by ‘claiming’ it is schedule I. When is anyone going to address this fact that cannabis is NOT LAWFULLY PLACED on SCHEDULE?

    • Jeff Star

      Oh my, is the federal government breaking some kind of law. I am wondering if their is a law suit that could be placed against the feds. God I hope nobody gets shot for trying.

  • Beedogz

    I guess he was too busy running guns to Mexican drug cartels to do it while still in office.

  • Beedogz

    He sold firearms to Mexican drug cartels and jailed young men and women for smoking a plant.

    He should be in prison for the interview.

  • Barry Jordan

    Let history note he didn’t speak up when it mattered, Eric Holder is the kind of person who allows injustice to prevail as long as he keeps receiving a paycheck.

  • Cleanslate

    The basis for cannabis prohibition has never been about the public
    welfare. It has been about racism, protecting the profits of Big Pharma
    and giving government leverage to intimate and control dissenters,
    nonconformists and all who will not submit to the establishment’s status quo.

    Bernie Sanders has actually authored a Senate Bill “Ending Federal Marijuana Prohibition Act of 2015,” to de-schedule cannabis and end federal prohibition. Not one other senator has stepped forward to co-sponsor that bill; not even a senator from one of the four states that enacted cannabis legalization.

    Bernie Sanders is singular in his courage to do the right and sane thing for the benefit of the vast majority of Americans. This is unprecedented, it has not happened in over 75 years of federal cannabis prohibition until now.

  • wqjackson

    Its to bad Holder didn’t make this statement while he was the AG. However, i’m sure politics and the administration had a lot to do with his decision not to publicly state his position.

  • A little late, isn’t it Mr. Holder? How many innocent people died, were incarcerated, persecuted or lives ruined on YOUR WATCH Eric Holder? That’s blood on your hands. The US Drug war that you and Barack Obama continued and even escalated, is right up there with Vietnam and Iraq now.