Current federal laws that determine how marijuana and other drugs are classified have “fundamental flaws” that have done “immense damage,” according to a new analysis coauthored by a former Drug Enforcement Administration (DEA) senior advisor.
While the Department of Justice and its component agency DEA are currently working to finalize a rule to move cannabis from Schedule I of the Controlled Substances Act (CSA) to Schedule III in accordance with an executive order from President Donald Trump, the agency’s “choices about how to regulate marijuana are sharply—and irrationally—constrained” by existing law, Matthew Lawrence, the former DEA official, argued in the new paper that he coauthored with Columbia Law School’s David Pozen.
“These schedules often force regulators into a Hobson’s choice between overcriminalizing drugs, through prohibitions that predictably backfire, or overcommercializing drugs, through hands-off approaches that leave users vulnerable to corporate exploitation,” Pozen and Lawrence, who worked in the office of the DEA deputy administrator from 2022 to 2023 and who is now at Emory University School of Law, write.
Rather than relying on criminal prohibition, the U.S. should instead look to what the authors call “capitalism controls” to more effectively regulate drugs, they say.
“US drug policy relies far too much on criminal prohibitions and far too little on what might be called capitalism controls. Criminal prohibitions have been shown time and again to be ineffective for widely used, habit-forming products. Worse than ineffective, they can lead illegal sellers to develop more-potent variants of, or substitutes for, whichever drug is the latest law enforcement priority. And yet, these prohibitions are a central pillar of the CSA and its state-level counterparts, with enormous costs in terms of arrests, imprisonments, and the undermining of racial justice and civil liberties.”
Capitalism controls, in contrast, focus on things like commercial and public availability, advertising restrictions and pricing policies such as excise taxes. They also involve checks on industry lobbying and restrictions on product additive to make products more addictive.
“None of these capitalism controls are present in the CSA,” Lawrence and Pozen say in the paper, which was published in the journal Science.
Additionally, current federal law only allows officials to consider medical benefits when making scheduling decisions, but the paper argues that nonmedical benefits such as religious, creative, social or recreational impacts should be considered, as well as policy benefits such as reduced incarceration that can stem from reform.
Because these factors are ignored, “no matter how wisely the DEA might implement the statute…the agency cannot reach a sensible outcome for a popular drug such as marijuana,” the authors argue.
“The policy that must change to bring rationality to the regulation of marijuana, along with many other controlled substances, is not the schedule in which marijuana is placed but rather the scheduling system itself.”
Taking a cue from how the Environmental Protection Agency approaches pollution control decisions, drug scheduling should consider “a wider range of interests and perspectives, with explicit attention given to the experiences of people who use or prescribe the drug in question,” they say.
Even worse than limiting perspectives, however, current scheduling policy “creates an information problem by restricting the very research into drugs’ benefits that might support their reclassification”—as researchers have continually pointed out that restrictions involved in working with Schedule I substances make it much more difficult to carry out their scientific investigations.
Looking ahead, Congress should create a new “harm reduction schedule” for drugs like heroin and fentanyl as well as an additional “managed market access schedule” where substances like cannabis and psilocybin could be classified, the paper argues.
“Under this latter schedule, marijuana sellers could be subject to a range of capitalism controls, including limits on potency, additives, marketing tactics, coordinated lobbying, and more,” Lawrence and Pozen write. “In the best tradition of federalism, Congress can learn from state legalization strategies that have curbed public health risks while surviving constitutional challenges brought by industry actors. To minimize conflict with state regulatory regimes that meet or exceed federal standards, Congress could further instruct that any firms operating within these regimes qualify for the managed market access schedule—and thus for all of the benefits of federal legal status—either indefinitely or for a transitional period.”
This new approach could extend beyond the U.S. and also be adopted on the global stage to reshape international drug control treaties and the scheduling system they created, the paper argues.
“Scholars broadly agree that marijuana policy in the United States today is neither coherent nor evidence based, even as they disagree on the solution,” Lawrence and Pozen say. “From the opioid crisis to the prison population boom to the ongoing marijuana mess, the prevailing framework for scheduling psychoactive drugs is a root cause of repeated failure.”
“To address this failure, the scientific community needs to stop fighting so much over the classification of specific substances and start focusing on the classificatory and regulatory framework itself,” they conclude. “Enlightened and effective drug policies will never be realized unless the schedules are straightened out.”
At a recent congressional hearing, Rep. Alexandria Ocasio-Cortez (D-NY) similarly criticized the current U.S. drug scheduling system—making the case that placing substances like marijuana and LSD in the most restrictive category runs counter to evidence showing their medical potential, hinders research and is associated with criminal penalties that haven’t effectively prevented harms from substance misuse.
