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Democrats have a new plan to legalize marijuana federally

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The proposal would expunge federal convictions and set a minimum age of 21 for cannabis purchases

Photo by: BSIP/Universal Images Group via Getty Images

On Wednesday, Sens. Cory Booker (D-NJ), Chuck Schumer (D-NY), and Ron Wyden (D-OR) released a discussion draft of legislation that proposes sweeping reform to marijuana policy in the US. The Cannabis Administration and Opportunity Act would decriminalize marijuana federally, expunge federal non-violent cannabis convictions (and encourage states to do the same), and create “new grant programs to fund nonprofits that provide services to those adversely impacted by the War on Drugs.”

In the introduction to the 30-page draft legislation, the senators note that adult use of cannabis is already legal in 18 states, Washington D.C., the Northern Mariana Islands, and Guam. Medicinal marijuana is even more widespread, legal in 37 states, Puerto Rico, D.C., Guam, and the US Virgin Islands.

“These changes represent a dynamic shift in public opinion and support across the political spectrum,” the statement notes. “State-compliant cannabis businesses will finally be treated like other businesses and allowed access to essential financial services, like bank accounts and loans. Medical research will no longer be stifled.”

Despite recent state actions, marijuana remains illegal at the federal level and subject to prosecution by federal agencies even in states where cannabis use is permitted. In practice, those prosecutions have been limited, but the risk of federal action has meant that marijuana businesses have limited options when it came to banking and many non-recreational uses of the plant have been stifled.

The ambiguous legal status of marijuana in the US has also heightened racial inequalities in the justice system. According to a 2020 analysis by the American Civil Liberties Union, Black Americans were more than three times as likely to be arrested for marijuana possession as white Americans. An analysis by the Washington Post last year found that between 2015 and 2019, Black people accounted for 89 percent of the 3,631 marijuana arrests in Washington DC.

The proposed legislation addresses this directly with a number of restorative measures directed towards communities who suffered disproportionately from marijuana prohibitions. The proposal would expunge federal non-violent marijuana convictions and allow individuals currently serving time to petition for resentencing. The legislation would also create an ongoing fund directing revenue generated from federal cannabis taxes to “reinvest in the communities most impacted by the failed War on Drugs.”

In addition, the proposed legislation would:

  • establish a minimum age of 21 for cannabis retail sales
  • conduct an evaluation of the societal impact of legalization by states with adult use of cannabis.
  • introduce three grant programs to create opportunity for those harmed by the War on Drugs
  • expunge non-violent federal marijuana arrests and conviction, and encourage states to do the same. Those serving time in federal prison for non-violent marijuana crimes would be able to petition a court for resentencing
  • provide funding to eligible states and localities for loan programs for small cannabis businesses owned by “socially and economically disadvantaged individuals”
  • impose an excise tax on cannabis products similar to those on alcohol and tobacco

The legislation would also transfer jurisdiction over cannabis regulation from the Drug Enforcement Administration (DEA) to the Federal Drug Administration (FDA) and Alcohol and Tobacco Tax and Trade Bureau (TTB). The FDA would have authority over manufacture and marketing of cannabis products, and the TTB would have regulatory authority over taxation of cannabis. And revenue generated by federal taxes would support restorative justice and public health and safety research.

The bill stops short of mandating legal status for cannabis across the United States. Under the proposed rule, state and local governments and Indian tribes would still be able to adopt and enforce rules and regulations over cannabis more stringent than the FDA requirements. The legislation would create a Cannabis Products Regulatory Advisory Committee, which the FDA would “convene and consult with before promulgating regulations.”

The bill has not been formally introduced to Congress, and a final legislative draft is not expected until later this year. As described in the summary, the existing proposal is simply a discussion draft, “meant to spur a robust discussion among stakeholders” as the three sponsoring Senators finalize their proposal.

Still, the effort arrives at a moment of unique momentum for marijuana reform in the US. Voters approved new cannabis laws in four states in the November 2020 elections, and Democrats in the House passed the MORE act in December which would have decriminalized cannabis and expunged criminal records of those convicted of marijuana-related crimes. President Biden said during his campaign that he would seek to “reschedule cannabis as a Schedule II drug so researchers can study its positive and negative impacts,” although Biden’s Justice Department has been slow to take action on the pledge.

Concerned stakeholders are encouraged to submit comments to the Senate Finance Committee by September, using the email address Cannabis_Reform@finance.senate.gov.