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President Joe Biden's promise to decriminalize marijuana moved forward in 2023, but awaits the U.S. Justice Department's review.
Federal law currently classifies marijuana as a Schedule 1 drug under the Controlled Substances Act, the classification meant for the most dangerous substances, including heroin and LSD.
In August 2023, the federal Department of Health and Human Services recommended that the Drug Enforcement Administration reschedule cannabis from Schedule 1 to Schedule 3.
In January, Health and Human Services released a 252-page, unredacted copy of its recommendation in response to a Freedom of Information Act request.
The document publicly acknowledged cannabis as having an accepted medical use and relatively low potential for abuse. The department's recommendation followed Biden's direction in October 2022 to the attorney general and Health and Human Services secretary to "expeditiously" initiate the administrative process to review how marijuana is scheduled under federal law.
Biden also said he would pardon anyone with a federal conviction of simple possession of marijuana. Federal officials told reporters at the time that no Americans were currently serving time in prison solely on a federal simple marijuana possession charge.
A Justice Department spokesperson told PolitiFact that it had received Health and Human Services' recommendation and "it's under review."
There is no mandated timeline for the federal government to act and historically the Drug Enforcement Administration has taken years to do so, Paul Armentano, deputy director of NORML, a group that advocates for descheduling marijuana, told PolitiFact.
Armentano said moving cannabis from Schedule 1 to Schedule 3 will not fulfill the promise of "decriminalizing" it.
"It would simply regulate cannabis like ketamine rather than like heroin," he said.
Schedule 3 substances are subject to uniform federal rules (the substances are legally available only by prescription from a licensed pharmacy), so changing marijuana's classification would not eliminate conflicting state and federal laws and policies, he said.
We will revisit this promise when the Justice Department announces a recommendation, but for now it remains In the Works.
RELATED: PolitiFact's Biden Promise Tracker
New York Times, Recommendation by HHS to DEA about marijuana, Aug. 23, 2023
Email interview, Peter Carr, Justice Department spokesperson, Feb. 14, 2024
Email interview, Paul Armentano, NORML deputy director, Feb. 20, 2024
President Joe Biden announced that he would pardon anyone with a federal conviction of simple possession of marijuana, his first step toward delivering on a campaign promise to decriminalize marijuana.
"No one should be in jail just for using or possessing marijuana," Biden said Oct. 6. "Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit."
Federal officials told reporters that no Americans are currently serving time in prison solely on a federal simple marijuana possession charge, however the number who have been charged is around 6,500 from 1992 to 2021, The New York Times found.
Biden also asked the attorney general and Health and Human Services secretary to "expeditiously" initiate the administrative process to review how marijuana is scheduled under federal law.
Federal law currently classifies marijuana as a Schedule 1 drug under the Controlled Substances Act, the classification meant for the most dangerous substances including heroin and LSD.
Nineteen states and the District of Columbia have legalized small amounts of marijuana for adult recreational use as of May, according to the National Conference of State Legislatures. As of Feb. 3, 2022, 37 states and the District of Columbia allow the medical use of cannabis products.
Under federal law, someone convicted of marijuana possession can face one year in jail for a first offense, and two or three years for subsequent offenses. But state or local law enforcement make the majority of the arrests and state penalties vary.
Biden asked governors to also issue similar pardons for state offenses.
Some governors and local elected officials have taken steps to decriminalize simple possession of marijuana. Birmingham, Alabama, Mayor Randall Woodfin announced in 2021 that the city would pardon 15,000 people convicted of misdemeanor marijuana possession charges in municipal court between 1990 and 2020. In Pennsylvania, more than 3,500 have applied for pardons in a program launched by Democratic Gov. Tom Wolf and Lt. Gov. John Fetterman.
Biden's announcement comes about one month before the midterm elections as Republicans have sought to portray Democrats as weak on crime. But polls have consistently shown majority support among Americans for legalizing marijuana.
Biden's actions do not fully decriminalize marijuana, but decriminalization advocates said it was a step toward his promise.
We will check back to see whether federal officials take any additional steps to decriminalize marijuana, including the outcome of the scheduling review by federal officials. But for now, we rate this promise In the Works.
RELATED: Biden Promise Tracker
White House, Statement from President Biden on Marijuana Reform, Oct. 6, 2022
Norml, NORML Comments on Biden's Marijuana Announcement, Oct. 6, 2022
National Conference of State Legislatures, Cannabis Overview, May 31, 2022
Congressional Research Service, Does the President Have the Power to Legalize Marijuana? Nov. 4, 2021
Marijuana Moment, More Than 3,500 Pennsylvanians Apply For Marijuana Pardons Under Governor's Expedited Relief Program, Oct. 5, 2022
AL.com, Birmingham to pardon 15,000 people with misdemeanor marijuana convictions, April 20, 2021
New York Times, Biden Pardons Thousands of People Convicted of Marijuana Possession Under Federal Law, Oct. 6, 2022
Paul Armentano, It's time for Biden to keep his promises on marijuana, Jan. 12, 2022
Email interview, Paul Armentano, deputy director of Norml, Oct. 6, 2022
Telephone interview, Justin Strekal, Bowl PAC founder, Oct. 6, 2022
Most Americans support legalizing marijuana, according to Gallup, but that hasn't influenced President Joe Biden to take steps toward his campaign promise to decriminalize marijuana use at the federal level.
"Unfortunately, we have not seen any steps or even the indication of serious consideration for a step in the right direction when it comes to marijuana policy reform and the Biden administration," said Justin Strekal, political director of the National Organization for the Reform of Marijuana Laws, which supports decriminalization.
Drug policy experts pointed to several examples of steps the administration could take.
Maritza Perez, a director at the Drug Policy Alliance, an organization that supports changing marijuana laws, said that Biden could order the Justice Department to deprioritize marijuana prosecutions or use his clemency power to release people serving time for federal marijuana offenses. Biden could also throw his weight behind the MORE Act, a bill that would remove marijuana from the list of scheduled substances under the Controlled Substances Act and eliminate criminal penalties for an individual who manufactures, distributes or possesses marijuana. The bill was introduced in May by Rep. Jerrold Nadler, D-N.Y., and has 101 co-sponsors.
The MORE Act is one of several legislative proposals to decriminalize marijuana possession that haven't reached a vote. U.S. Rep. Nancy Mace, R-S.C., introduced a bill in November that would decriminalize marijuana at the federal level, allowing states more latitude to set their own laws. Mace's bill had four co-sponsors as of early January.
Under the Controlled Substance Act, the federal government considers marijuana a Schedule 1 substance, the most serious level, "meaning that it has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision," according to the U.S. Drug Enforcement Administration.
Under federal law a person convicted of marijuana possession can face one year in jail for their first offense, and two or three years for subsequent offenses. But the majority of arrests are made by state or local law enforcement, and state penalties vary.
Many states over the past decade have legalized marijuana for recreational or medical use. Eighteen states, two territories and the District of Columbia have legalized small amounts of marijuana for adult recreational use, according to the National Conference of State Legislatures. As of May, 36 states and four territories allow for the medical use of cannabis products.
Andrew Sidman, chair of the political science department at John Jay College of Criminal Justice, said criminal justice reform has taken a back seat as the Biden administration focuses on other priorities including COVID-19, inflation and his Build Back Better social safety-net legislation.
"Criminal justice reform is not a place where the president is going to try to spend political capital," Sidman said.
Biden could take some actions without legislation, such as making drug enforcement a reduced priority, but he has chosen not to take steps on his own, Sidman said. Meanwhile, given the partisan split in the Senate, legislation to decriminalize marijuana is unlikely to move forward.
Biden still has time, but so far he hasn't taken any steps to fulfill his promise. We rate this promise Stalled.
Congress.gov, H.R.5977 - States Reform Act, Introduced Nov. 15, 2021
Congress.gov, H.R.3617 - MORE Act of 2021, Introduced May 28, 2021
NORML, Federal Laws and Penalties
Justice Department and Drug Enforcement Administration, Drug fact sheet, April 2020
National Conference of State Legislatures, Cannabis Overview, July 6, 2021
National Conference of State Legislatures, State Medical Cannabis Laws, Nov. 29, 2021
Gallup, Support for Legal Marijuana Holds at Record High of 68%, Nov. 4, 2021
PolitiFact, Barack Obama says it's up to Congress to change how feds classify marijuana, Feb. 4, 2014
Email interview, Professor Andrew Sidman, chair of the department of political science at John Jay College of Criminal Justice, Dec. 21, 2021
Telephone interview Justin Strekal, political director of the National Organization for the Reform of Marijuana Laws, Dec. 13, 2021
Email interview, Maritza Perez, director, Office of National Affairs at the Drug Policy Alliance, Jan. 3, 2021