The other side of the story: Schedule III from a former DEA official
Readers know I’ve mostly argued hard against rescheduling cannabis to Schedule III instead of fully descheduling. I’ve seen it as a sneaky way to keep prohibition harms to benefit pharma profits over public health. But keeping an open, ethical perspective means questioning your own assumptions. However convincing we sound to ourselves, truth comes from good faith back-and-forth, not ignoring folks who disagree.
So when a former DEA lawyer recently argued Schedule III could ease some restrictions without kicking off more enforcement, the nuance demanded attention. My gut still recoils at frames accepting arbitrary federal controls over safer stuff than legal alcohol. And the money conflicts letting suffering go on require no debate here.
However, progress lies not in louder fist pounding from trenches but building understanding bridges spanning divides. If rescheduling aspects could concretely better real lives for the unjustly jailed while avoiding extra opioid-style fallout, it merits consideration. The people deserve relief by any ethical means necessary.
Thus today we’ll explore in depth this different view on possible cannabis scheduling shifts, weighing claims around lower risks and symbolic wins against lingering worries like fairness and access. I stay skeptical, but open to where facts and reason lead. The issues matter more than ideology or identity.
By shining light from all angles to catch blind spots, perhaps some agreement emerges on acceptable middle stages between descheduling fully and endless Schedule I misery. My aim is neither slamming other views nor boosting any one stance, but clarifying whatever enables living freely as responsible adults. If that demands updating assumptions, so much the better to lose outdated dogmas.
So let’s dive in openly and see where nuanced thinking guides us. The truth hides from no honest perspective genuinely seeking to end needless suffering. Where facts and compassion meet, locked doors open. I welcome being proven wrong in the service of right.
Before we begin, how does the scheduling process go?
NOTE: I have taken the same questions from the original POLITICO article, and summarized the points and added my own thoughts.
According to former DEA official Howard Sklamberg, the cannabis rescheduling process involves multiple government agencies before final determination. First, the FDA conducts a scientific and medical evaluation, then provides a scheduling recommendation to Health and Human Services (HHS). If HHS agrees, they pass the suggestion to the DEA, which makes the ultimate scheduling decision under authority of the Controlled Substances Act.
Sklamberg explains that once the DEA gets the rescheduling recommendation, they undertake an administrative process allowing for public hearings and comments. By statute, the DEA must defer to the FDA and HHS's scientific and medical determinations. However, they may consider other factors in their final policy decision beyondphysical and mental health effects.
From the perspective of this commentator, the convoluted bureaucracy described elicits skepticism. Relegating decision-making to unelected agency technocrats contradicts principles of democratic accountability. And opportunities for industry lobbying look rife within opaque machinations happening almost entirely behind closed doors on such a culturally-charged issue. It appears a formula enabling institutional inertia serving elite special interests rather than voters.
I question the wisdom of granting overriding deference to agencies like the DEA regarding a substance less harmful than alcohol, as policies enacted through this anti-democratic process led us to the disastrous status quo in the first place. Such a framework cannot inspire public confidence in equitable outcomes, only procedural theater ignoring common sense and popular will.
When you say the DEA has to defer to HHS, does it mean that they have to accept the recommendation? Or could they go a different way?
When asked whether the DEA must accept HHS's scientific recommendation or could diverge, Sklamberg clarifies some nuance. While the DEA cannot override or ignore the medical and scientific rationale behind rescheduling, they may consider additional factors beyond health in their policy decision-making. So if HHS provides documentation that cannabis no longer meets Schedule I criteria per relevant research, the DEA cannot claim contrary scientific opinions but could cite other concerns leading them to alternative actions.
Sklamberg notes the DEA has never rejected an HHS scheduling suggestion historically. He considers it unlikely now but admits anything remains possible. This supposedly strict deference sounds proper in theory for impartiality.
However, from this commentator's lens, additional loopholes and ambiguity in processes (like unspecified "other factors" the DEA may invoke to ignore science-based recommendations) reinforce perceptions of an institutional captured environment biased toward prohibition. What constitutes legitimate rationale beyond medical science gets decided behind the pine curtain rather than democratically.
Bureaucratic discretion creates one-way ratchets upholding status quos against change. And vague decision criteria north of transparent invite more capriciousness retaining reactionary policies despite facts. Such frameworks offer staging rather than solutions to long broken systems. The people deserve better.
I’d like to get your take on some of the myths around rescheduling. So I will just put them to you one at a time: Moving marijuana to Schedule III would lead to a crackdown on state cannabis programs.
When asked about fears of increased enforcement crackdowns on state cannabis programs if marijuana gets moved to Schedule III, Sklamberg dismisses the concerns as "particularly illogical." He argues rescheduling to recognize reduced health risks would not spur sudden policy reversals toward aggressive policing of existing industries previously tolerated.
However, history shows assuming government agencies consistently act logically rather than under shifting political incentives risks naivety. IRS tax policies and reporting rules offered tools taking down Capone after other charges failed. And the federal Controlled Substances Act itself emerged in reactionary political moments, not as scientifically objective solutions.
Regulatory policies frequently get weaponized for unrelated aims when incentives align. And vague technical compliance matters routinely enable targeting disfavored groups when enforcers cannot directly attack them otherwise. So while rescheduling itself may not automatically modify the enforcement calculus, it could still provide tools indirectly achieving similar agendas if certain factions wished it.
This is not to claim some conspiracy orchestrating cannabis crackdowns. But citizens have seen segmentation of markets to protect establishment interests when disruptive innovations appear. It seems reasonable guarding against more subtle maneuvers indirectly attacking legalization's gains to favor special interests, even if not through direct DEA raids. A new positive sounding step could still hide mechanics carrying unintended consequences absent equal application of laws. Cynicism remains warranted.
What about the argument that if it is rescheduled to Schedule III that state marijuana programs are going to be subject to FDA regulations? Is it a resource problem?
When asked about worries over the FDA regulating state cannabis programs more under Schedule III, Sklamberg admits the technical power already exists but questions why rushing to use it would happen without past action, regardless of schedule. He also cites limited resources preventing huge federal enforcement beyond symbolic slaps.
But this Commentator considers those assumptions around steady priorities and funding only apply in stable times. Today's social and political mood feels anything but predictable, with radical views gaining ground and economic instability challenging budgets. What seems farfetched now could reshape fast under populism or more reefer madness.
Remember sudden federal finance moves weaponizing banks and IRS against gun owners and others. Official powers often expand quickly post-crisis to consolidate power and distract citizens from failures of leadership causing turmoil in first place. Assuming best case stability and enforcement logic feels naive given past pretext switcheroos.
While FDA takeovers of existing cannabis infrastructure stay unlikely, rule churns and selectively targeting certain producers to complicate operations can't get ignored. Complication tripping up less sophisticated players advantages corporate interests, which is sometimes the underlying tactical goal beyond just direct control through blanket burdensome policies doomed in court. Impartiality stays dream despite best intentions.
What do you make of the fears that rescheduling would mean that Big Pharma is going to swoop in and take over the cannabis industry?
When asked about worries over Big Pharma co-opting cannabis after potential rescheduling, Sklamberg doubts major takeovers of existing operators, though acknowledges clinical trials and FDA approvals could develop for targeted medications. However the time and costs likely limit sweeping change. He believes the current landscape would persist alongside prescription cannabis drugs covered by insurance if economically viable.
This commentator agrees major disruption seems unrealistic given the wide array of recreational goods, the entrenched industry and continuing non-medical demand. However, Pharma influence on regulators and lawmakers still poses concerns if it translates into rule changes disadvantaging small providers to inflate corporate strongholds.
Past registration expenses or restrictions on treats like edibles could hit smaller entities lacking armies of lawyers and lobbyists to contest barriers or pay tolls. So while full scale takeovers appear unlikely, backdoor efforts cementing moneyed establishment factions above home grower markets warrants vigilance. Segmentation serves corporate appetites.
Frankly the plant’s very nature resists complete usurping into top-down monopolies, and citizens tend embracing traditional use rights if pushed excessively by officious commercial or regulatory interests. But decentralized markets thrive on freedom from meddling overseers, so scrutiny endures over ongoing independence versus consolidated creep post-rescheduling. Big pharma may enhance lives through medicine, yet must be barred from definitional limiting access from less toxic non-medical applications.
But would moving marijuana to Schedule III make research easier? What would be the benefits for the cannabis industry of Schedule III?
When asked whether Schedule III status would ease research roadblocks, Sklamberg acknowledges some hurdles lowered but maintains significant time and monetary barriers regardless. On benefits for the cannabis industry, he highlights pivotal tax code changes enabling normal business expense deductions previously blocked under Schedule I. Beyond finances, he considers rescheduling largely symbolic however.
This commentator concurs that the tax implications could provide substantial relief on burdensome policies that intrude on enterprise viability. And even symbolic wins matter to broader public acceptance. However, the lingering reality of operating within a federally prohibited environment means fundamental instability and hardship continue haunting businesses compared to fully legalized goods.
Rescheduling can't conjure the banking accessibility, investment opportunities and transparency available even in "vice" industries like alcohol or tobacco. And the technical illegality sticks firms in limbo between worlds, meaning hassles and stigma persist. So whileSchedule III brings selective progress, it seems a band-aid on the inherent unworkability of trying to scale obstructed, banned-yet-tolerated markets. It puts lipstick on a pig yet leaves the underlying absurdities.
True normalization likely requires Congress passing comprehensive laws around cannabis rather than technocratic agency maneuvering. But tax relief does assist provided the incremental change prefigures more transformational freedom down road.
Does Schedule III have any impact on the criminal justice elements of federal cannabis enforcement?
When asked whether moving cannabis to Schedule III affects criminal penalties around federal marijuana enforcement, Sklamberg indicates distribution remains illegal akin to Schedule I, while noting federal action stays rare compared to state and local policing.
This commentator agrees clear prosecutorial changes seem unlikely given existing rarity of federal charges for simple possession absent broader trafficking concerns. However, the question of equity persists around leaving small operators under intensified scrutiny unable to navigate complex compliance burdens like taxes, regulations and corporate competition barriers.
While rescheduling offers no direct sentencing relief, the shift from illegality frames could trickle down discouraging local charging for minor offenses currently considered moral indicators of degradation. Then again perhaps removal from DEA's exclusive "no medical value" Schedule I classification cuts arguments against state social justice efforts like convictions expungement, reentry programming or community reinvestment.
The devil lurks in details left unaddressed. But optics guide outcomes, so watching messaging around enforcement intents and demographic consequences matters greatly. Schedule III walks a tightrope between signaling tolerant evolution and reaping lopsided advantages to establishment factions at the roots. The now unmentionable C-word - corporate cannabis - lingers chiefly as priority, not populace. Tensions surely mount on greed vectors.
Would it actually be possible to deschedule through this process? and What do you think is a potential timeline for rescheduling?
When asked about fully descheduling cannabis through rescheduling procedures, Sklamberg considers it highly unlikely given restrictions around approving substances with any abuse potential under the CSA. Regarding timelines, he guesses Schedule III action may arrive mid-2023 based on past patterns of election-year politics influencing policy moves.
This commentator remains less confident on precise timetables given fractious politics and conflicting state/federal motions. But the desire for pre-election wins aligned to public opinion makes 2023 plausible if bureaucratic entities coordinate efficiently.
However, the considerable red tape detailed seems purpose-built to undermine rapid shifts against engrained interests. And the administration appeared caught flat-footed by initial descheduling media leaks, suggesting low eagerness for action. Descheduling always faced longer odds for threatening too many pillars of the prohibition-industrial complex; half-measures like Schedule III divert just enough pressure to sport progress.
Cynics expect more paralysis by analysis with weighty declarations awaiting endless further research. That pattern looks all too familiar after decades of bad faith arguments by agencies benefiting mightily from inertia. Perhaps political and economic instability forces hands toward less authoritarian leverage over free markets and free people making autonomous choices conflicting with technocratic worldviews. But given past behaviors, this Commentator braces for stonewalling despite any facade agreements on need for change.
The Sticky Bottom Line
It’s important to learn from others. I think that Sklamberg hit many things right on the nose, and others I believe his lifelong affiliations with the system blinds him from the bad faith and corruption that lingers at the top.
One thing is certain, the writing is on the walls. Cannabis is here to stay, but how that will look is anyone’s guess. If there’s one thing I learned is that these days making predictions about things is a fools game. I personally sit back and just watch the game unfold, and at the end of the day, I just play my own game.
What’s your thoughts on it all?
SCHEDULE 3 WINNERS AND LOSERS, READ ON...
