As President Joe Biden works to reconcile his past championing of keystone policies in the War on Drugs, activists see opportunities for progress in shifting narratives around drug use and abuse, as well as in realizing long-overdue criminal justice reforms.
Biden has yet to make good on campaign promises of decriminalizing cannabis, ending mandatory minimum sentences and automatically expunging cannabis use convictions. Reform proponents see positive signs, however, in pending nominations for heads of key agencies including the Drug Enforcement Agency (DEA), and in an April 1 letter from the Office of National Drug Control Policy (ONDCP) focused on harm reduction.
“This is not the Trump presidency where our president is appointing his friends who aren’t really experienced in that field but he just needs somebody that he can trust to say ‘yes’ to him,” Melissa Lavasani, founder of the Plant Medicine Coalition, an advocacy nonprofit based in Washington, D.C., told Lucid News.
“Biden is appointing experts in these fields, and he’s going to be looking to them for feedback on policies,” she continued. “So we’re not going to really have a very clear direction on what drug policy is going to look like for this administration until we have these really crucial appointments in office.”
The President has tapped Anne Milgram, a former state attorney general and critic of the U.S. criminal justice system, to lead the DEA, one of many federal agencies that has gone without a Senate-appointed leader since the Obama administration. Milgram previously expressed support for state-level medical marijuana programs.
“This bodes well despite the DEA’s ongoing resistance to many of these progressive efforts,” Ismail L. Ali, acting director and counsel for the Multidisciplinary Association for Psychedelic Studies (MAPS), told Lucid News in an email.
This cautious optimism from policy reform proponents is rooted, in part, in Biden’s political history of advocating for and authoring some of the country’s most punitive drug laws.
“I don’t think that we had our hopes up to begin with,” Maritza Perez, national director of the Drug Policy Alliance, told Lucid News. “Considering that Joe Biden is one of the architects of mass incarceration, and he’s always been extremely problematic on drugs.”
Biden’s extension this month of a Trump-era emergency rescheduling of fentanyl, a synthetic opioid, was disappointing, said Perez, particularly because the reclassification means the drug—which has increasingly contributed to overdose deaths in the United States—carries with it mandatory minimum sentencing.
“For a president who has said we need to end mandatory minimums and support racial equity throughout our policy choices, for him to support something like this … it just doesn’t make sense, unless he actually didn’t mean what he said,” Perez told Lucid News.
Data shows mandatory minimums disproportionately impact people of color and people on the lower levels of the drug distribution chain.
As a former U.S. senator and former vice president, Biden has struggled to align his past political positions with their damaging effects, particularly on minorities, with the evolving attitudes of Americans. During the 2020 presidential campaign, for example, the president admitted that the 1994 Crime Bill, which he wrote, “was a mistake” and that he has been “trying to change it since then.”
Public opinion of cannabis has certainly changed over the last several decades. A Pew Research Center survey in April showed 91 percent of U.S. adults think cannabis should be legal in some way: 60 percent of respondents said marijuana should be legal for medical and recreational use, and 31 percent said it should be legal for medical use only. As well, citizen-initiated ballot measures propelled the legalization of medical marijuana in 19 of the 35 states that now permit its use.
Campaign Promises vs. Presidential Policy
Biden was the most prominent Democratic presidential candidate in 2020 to reject federal legalization of marijuana, a stance in line with the national Democratic Party but demonstrably out of sync with the American public.
Vice President Kamala Harris, a former state senator from California, has adopted Biden’s position of decriminalization despite sponsoring a bill in 2019 that would end marijuana prohibition. In April, Harris said the president is “too busy” dealing with the Covid-19 pandemic to take up cannabis decriminalization. Biden-appointed Attorney General Merrick Garland has indicated the justice department will informally deprioritize pursuing cannabis users complying with state laws.
“A big impediment to getting [a marijuana legalization bill] signed into law is Joe Biden,” Perez said, though she is hopeful his administration will take advantage of Democratic Party control of the White House and both branches of Congress to enact reforms that will help realign existing laws with public sentiment.
“Democrats always have an excuse as to why they can’t do something bold and progressive,” Perez said. “When they aren’t in charge, they say ‘Republicans are blocking us,’ and when they are in charge, they say ‘Oh, we need the moderates. And we also need to be bipartisan.’”
Republican support for legalizing cannabis continues to climb. Pew’s April survey showed 47% of GOP conservatives and moderates who lean Republican believe marijuana should be legal for medical and recreational use. In the November 2020 election, voters in five states approved some form of cannabis legalization, and three of those states—Mississippi, Montana and South Dakota—went to former President Donald J. Trump.
Last week, two House Republican co-chairs of the bipartisan Congressional Cannabis Caucus, Reps. David Joyce (R-OH) and Don Young (R-AK), introduced the Common Sense Cannabis Reform for Veterans, Small Businesses, and Medical Professionals Act, a bill that would deschedule cannabis, create safe banking for state-legal cannabis businesses, permit federal marijuana research, and ensure military veterans’ can legally use cannabis under applicable state laws.
Joyce and Young’s proposal is separate from the Marijuana Opportunity Reinvestment and Expungement (MORE) Act passed by the House last December. A major difference in these bills is social justice language, which one legal expert pointed out, “will surely be an avenue for criticism of the [Joyce and Young] measure, even by pro-cannabis legislators.”
The MORE Act would create an Office of Cannabis Justice and ensure the federal government could not discriminate against citizens or immigrants for prior cannabis use. Joyce’s and Young’s bill does not. Joyce’s and Young’s proposal does include banking provisions, and the MORE Act leaves those to an additional bill, the Secure and Fair Enforcement (SAFE) Banking Act, which the House passed in April.
Senate Majority Leader Chuck Schumer (D-N.Y.) has vowed to hold a vote on the MORE Act, though it is unlikely to pass. He has also indicated he is working with colleagues in the Senate to introduce a bill that would include banking provisions.
Focus on Harm Reduction
While light on specific policy recommendations, the ONDCP letter “talked a lot about harm reduction and racial justice,” Perez, of the Drug Policy Alliance, said. “It talked about drug activity through a public health lens. That actually was really great to see. It gave us hope that they’re listening to advocates, and that [the ONDCP] will take a new course on drug policy.”
Ali, whose organization, MAPS, focuses on cannabis and psychedelic research, said that while specific policy reforms related to these substances are not addressed in the ONDCP letter, “Anything that encourages and allocates funds toward harm reduction, and discourages increased criminalization of any drugs is good for the psychedelic movement. Wins for broader drug policy are wins for psychedelics too,” says Ali, though he is concerned about related policies that continue to cause harm.
“I worry that the move toward increasing criminalization for any drugs risks the progress we’ve made in the long run,” Ali wrote in an email. “Supply-reduction efforts tend to increase the militarization of non-U.S. drug control operations which ultimately impact people outside the U.S., and that militarization trickles down into federal drug policy and even local policing.”
Lavasani, whose Plant Medicine Coalition is currently focused on securing government funding for natural and synthetic psychedelic plant medicine research, noted the ONDCP’s acknowledgement of the connection between mental health and substance abuse.
“There’s no doubt in anyone’s mind that addiction is a mental health issue,” Lavasani said. “It absolutely is. And we’ve been treating it wrong this entire time. So to really solve this problem, we can’t continue to do what we were doing before.”
Noting the documented surge in depression during the Covid-19 pandemic, Lavasani sees opportunity for psychedelic therapies to take root in policy reforms.
“The government’s going to have to think creatively about how to solve this,” she said. “And some of these medicines that we’re talking about and advocating for preliminarily show that they have positive results.”
The potential of psychedelic therapies has reignited conversations around Schedule 1 substances, sparking venture capital investments in psychedelics and fueling debates over everything from patenting to the ethical and environmental implications of legalizing substances for the masses.
Last month, President Biden’s son, Hunter Biden, who has struggled with alcoholism and cocaine addiction, released a memoir that includes his experience using 5-MeO-DMT, a psychoactive chemical found in various plants as well as the venom of the Bufo alvarius toad. While this is unlikely to result in a dramatic shift in the President’s approach to drug policy, (“I wouldn’t hold my breath on that,” said Perez), it is an opportunity for dialogue.
“I think it says something that the President’s son has used plant medicine for himself,” said Lavasani. “And that story is slowly getting out there more and more. And we’re dealing with a raging opioid crisis that our lawmakers have to address.”
Lavasani said part of the reason she founded the Plant Medicine Coalition was to ensure everyday Americans have a voice in the policy-making process. PMC advocates for the descheduling of plant medicines, including psychedelics, while also recognizing the importance of thoughtful regulation that protects people and the planet.
“[We] advocate for policies that are inclusive, that are accessible for Americans,” she said, adding, “These big companies have a lot of money and they will take over this whole thing … you have to be part of the conversation” to ensure equitable policy is prioritized.
Lavasani continued, “Our approach is that anything that moves the needle forward is a positive step for the movement, no matter how small and the failure of any legislation just breeds another opportunity for different legislation in that jurisdiction.”
Both Perez and Ali said they’re hopeful Biden will follow Garland’s lead and issue a memo similar to one released by James Cole, U.S. Attorney General under former President Barack Obama, which directed federal prosecutors not to interfere with state marijuana laws. Jeff Sessions, Attorney General under former President Trump, reversed Cole’s policy in 2018.
“Ideally, the Biden administration would encourage a Cole memo-style approach to psychedelic decriminalization and legalization,” Ali, of MAPS, wrote to Lucid News. “The federal government should take a hands-off approach to states changing policy around psychedelic substances and let meaningful experimentation happen at the state level.”
Earlier this month, the Department of Justice (DOJ) notified cannabis growers who had applied for licenses to grow the plant for research purposes that the DOJ would move ahead with approvals, ending a years-long delay and federal monopoly on the practice, a move Ali had hoped for.
“This opens up the possibility of FDA-permitted research,” Ali wrote, “which would strengthen the already-rich movement toward creating access to medical cannabis. Its ongoing delay has prevented potentially life-saving research from happening.”
Perez, of DPA, also wants to see the Biden administration make good on a promise to issue clemency to low-level, non-violent drug offenders as well as legalizing overdose prevention sites.
On the campaign trail, Biden committed to ending the disparity in federal sentencing law for crack cocaine versus powdered cocaine, an action policy advocates are watching for.
As public interest in plant medicines including psychedelics grows, Ali and Lavasani also want to see federal funding for psychedelic research, something that the Schedule 1 classification of these substances has made virtually impossible.
“This is the one area I think that our government can show real bipartisanship is drug reform,” said Lavasani. “The momentum is building. I think there are opportunities here.”
Image: Nicki Adams using adapted photo by Phil Roeder