Eric Holder Was the First Attorney General to Hint That It’s Time For the Government to Stop Lying About Marijuana

Speaking with Katie Couric late last week, outgoing US Attorney General Eric Holder publicly called into question America’s longstanding classification of cannabis as a schedule I prohibited substance under federal law.

"I think it's certainly a question that we need to ask ourselves — whether or not marijuana is as serious a drug as is heroin," Holder said. "[T]he question of whether or not they should be in the same category is something that I think we need to ask ourselves, and use science as the basis for making that determination."

In reality, the question of whether the available science is consistent with cannabis’ schedule I status has been posed repeatedly over the past four decades. And the answer, to virtually everyone but the US federal government, is now all but self-evident.

Which is why Holder’s admission, while mildly encouraging, should likely not be interpreted as an indication that either the administration or Congress intends to address the issue of cannabis’ misclassification any time soon. In fact, under the federal Controlled Substances Act of 1970, it is the Attorney General – that is Eric Holder himself – who possesses the authority to call for the rescheduling of specific controlled substances. In practice, however, the AG has consistently delegated this authority to the US Drug Enforcement Administration – an agency that is altogether hostile to any potential change to pot’s boogeyman status.  

After all, it was ex-DEA Administrator John Lawn who, in 1990, moved to set aside the ruling of the agency’s own administrative law judge, Francis L. Young, in NORML v. DEA (a lawsuit initially filed in 1972, but not heard until 1988). In his verdict, Young determined: “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. … It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.” Yet, that is precisely what the DEA officials ultimately decided to do. (The agency’s denial was eventually upheld in 1994 by the United States Court of Appeals for the DC Circuit.

Similarly, in 2011 acting DEA Administrator Michele Leonhart rejected a separate marijuana rescheduling petition (which had initially been filed in 2002), claiming: “[T]here are no adequate and well-controlled studies proving (marijuana's) efficacy; the drug is not accepted by qualified experts. ... At this time, the known risks of marijuana use have not been shown to be outweighed by specific benefits in well-controlled clinical trials that scientifically evaluate safety and efficacy." 

As they had before, the courts similarly rubber-stamped the DEA’s rejection, affirming the absurd notion that none of the thousands of physicians routinely authorizing and supervising the use of medical marijuana in states that have legalized the practice are, in fact, qualified to hold an expert opinion on the subject. In October 2013, the Supreme Court declined to review the matter – thus affirming the DEA’s contention that cannabis is among the most dangerous substances known to man.

Yet, while Ms. Leonhart may argue in that cannabis’ potential harms to health are similar to those of heroin in legal filings, she has been reluctant to testify to this position under oath. It is obvious as to why.

By definition, a schedule I controlled substance must meet all of the following three criteria:

(A)  “The drug or other substance has a high potential for abuse.”

(B)  “The drug or other substance has no currently accepted medical use in treatment in the United States.”

(C)  There is a lack of accepted safety for the use of the drug or other substance under medical supervision.”

Substances that do not meet these criteria or that are deemed to hold therapeutic value are placed in lower, less restrictive schedules. Meanwhile, two of the most deadly, non-medical drugs – alcohol and tobacco – remain unscheduled under the CSA. In addition, synthetic versions of cannabis’ primary psychoactive compound, THC, are classified as a schedule III drugs and are legally marketed in the United States under the trade names Marinol and Cesamet.

While some have argued that cannabis ought to be placed in a lower schedule (like Marinol), others advocate that the plant be descheduled altogether (like alcohol). Yet, while the question of how cannabis ultimately ought to be classified may remain unsettled, there is no question that the existing science does not support the plant’s present scheduling. 

When Congress initially elected to classify cannabis as a schedule I drug, fewer than 400 published papers existed in the scientific literature relative to the plant’s botany, its active components, or the their biological effects. Today, according to a keyword search on the scientific search engine PubMed, over 20,000 scientific papers exist in the literature specific to the cannabis plant. Of these, many address the substance’s likely abuse potential, which according to a comprehensive review by the National Academy of Sciences, Institute of Medicine is similar to that of anxiolytics (about 9 percent) and is far lower than the dependence liability associated with other substances like alcohol (15 percent) and tobacco (32 percent).

Further, there are now hundreds of controlled studies, including many FDA-approved, gold standard clinical trials, assessing the safety and therapeutic efficacy of cannabis. A recent scientific review of several of these trials provides a definitive response to Eric Holder’s long overdue question in regard to the appropriateness of marijuana’s schedule I status. “Based on evidence currently available the Schedule I classification is not tenable,” it concluded. “[I]t is not accurate that cannabis has no medical value, or that information on safety is lacking.”

There’s your answer Mr. Holder. Now the question is: What, if anything, are you or your successor intending to do about it?