Proposed Federal Decriminalization of Marijuana Likely Won’t Pass and Doesn’t Go Far Enough

Cannabis is currently decriminalized in 34 states and could be on its way to federal decriminalization thanks to new legislation drafted by Sen. Cory Booker (D-NJ), Sen. Ron Wyden (D-OR), and Sen. Chuck Schumer (D-NY). Additionally, the draft bill proposes restorative justice initiatives through taxes to benefit those impacted by the War on Drugs, an era of strict drug laws that disproportionately harmed Black and brown Americans. However, leaders in the cannabis space say that while the proposed bill is a good start, it doesn’t go far enough. And it’s not likely to pass.

“There are critical items either missing or vague enough to not create the transformative change needed to rectify injustices,” says Solonje Burnett, co-founder of Humble Bloom, a cannabis marketplace and consulting firm.

But the bill includes many positives.

“[It’s] incredible to see the removal of medical research restrictions as well as unfair policies targeting marginalized mostly Black, brown, and low-income communities around federal benefits, housing, education, and adult-use consumption,” says Burnett. “Having the ability to research the plant for healing, access to federal banking and services, immigration protections, indigenous inclusion, auto expungement, capture demographic data for employment, ownership, and conviction, and supposed advantages to melanated entrepreneurs for licensing and loans is long overdue.”

The draft bill, the Cannabis Administration and Opportunity Act, does fall short, says Burnett. If it’s passed, those who possess, produce, and distribute marijuana in states where it is legal would no longer have to fear penalties at the federal level. Currently, weed is recreationally legal in 18 states, Washington, D.C., and Guam; and legal strictly for medicinal use in 20 states and the U.S. Virgin Islands. Just like states and localities control the legality of alcohol, states would retain the right to control the legality of marijuana weed would remain illegal in states where it is illegal.

“I really take issue with states being able to implement their own cannabis laws. This destroys the ability for interstate commerce, continues to criminalize communities and those in the unregulated market,” says Burnett. “When we leave these major decisions up to the states, communities of color and under-resourced populations lose. We see that playing out right now with voter suppression, health care, LGBTQIA+, and abortion rights. Empowering legislators to control the population’s destiny (90 percent of American’s want legalization) when they obviously value corporations and profit over individual civil liberties.”

This draft bill also calls for expunging federal non-violent cannabis convictions and allows petitions for resentencing while encouraging states and localities to do the same. It also bars the ability for cannabis to impact immigration status or eligibility for federal public benefits like housing or food assistance.

“The devil is in the details and they need to dig deeper especially on the reparative justice front,” says Burnett. “Why are those currently imprisoned being made to petition for resentencing rather than simply released and provided assistance in recovery? Meanwhile, the proposal allows others the freedom to immediately work in the industry? Those with non-violent offenses should be removed from cages the moment the plant is removed from the list of controlled substances. ”

This proposed federal weed decriminalization legislation also aims to create an opportunity trust fund that would be funded by cannabis tax revenue “to reinvest in the communities most impacted by the failed War on Drugs, as well as helping to level the playing field for entrepreneurs of color who continue to face barriers of access to the industry,” reads the draft bill. This echos reparations-based legislation in Evanston, Illinois, (the first city to create reparations for its Black residents), which is funded through cannabis tax revenue.

Burnett says reparations should play a vital role in marijuana decriminalization and legalization.

“Reparations, restorative justice, community reinvestment, re-entry programs, no strings grants, education, and workforce training should all be prioritized in legalization,” says Burnett. “The cannabis plant should aid in the upliftment rather than the persecution of our people. Look at what just happened with Sha’Carri Richardson at the Olympics. A shining star’s hopes dashed due to a plant that helps to regulate our systems. Prohibition ruins Black lives and blocks the full expression of our humanity. Reparations must be made to begin to course correct the culture of injustice and inequality that is commonplace.”

Burnett expressed concerns at the level of taxation needed for cannabis businesses to gain legal status.

“Eligibility for small business tax credits aren’t enough,” says Pryor. “I would like to see low rates to preserve industry access and opportunity for those who don’t have the privilege of being highly capitalized.”

This legislation would also make it easier for cannabis research to be conducted. Currently, researchers studying cannabis must get approval from Drug Enforcement Administration (DEA) and the Food and Drug Administration (FDA) and can only use cannabis from federally approved production facilities, which researchers note is often very different from the cannabis available in adult-use and medical markets around the country. “As a result of these strict limitations on research into cannabis, possible health benefits or harms of its use may remain unknown,” reads the draft bill. “Researchers have been prevented from studying the impairing effects of THC in order to develop effective tests for driving under the influence of cannabis, the effects of cannabis use on fetal development, and other crucial gaps in our national understanding of this widely used substance.”

“The one thing the more moderate leaning folks can agree to is medical,” says Burnett. “It’s the deeply rooted stigma that blocks holistic acceptance. Currently, 37 states and D.C. have legalized medical usage allowing corporations the chance to be ahead of the legalization game. There’s so much potential in unlocking the plant’s potential for mental, emotional, physical, and spiritual wellbeing. It’s high time we invested in research and this bill would open the flood gates to discovery.”

For the time being, these discussions will likely remain hypothetical, says Mary Pryor, co-founder of Cannaclusive, a company working to give communities of color a stake in the cannabis industry.

“We are in a very partisan environment,” says Pryor. “Whatever has been proposed, the [chance] of it actually making it into the voting rounds, or being able to assemble 60 votes for it requires 10 Republicans. And so, unfortunately, even with what’s in there, focusing on restorative justice and government intervention in cannabis, Republicans have pretty much been very Libertarian-esque when it comes to aligning with language, the industry. That bill’s not going to go far.”

However, Pryor is hopeful that federal legalization isn’t so far off, and hopes that it comes with meaningful restorative justice.

“I personally feel it will be legalized in at best three to five years,” says Pryor. “But what we don’t want is the Republicans to turn this into something that doesn’t even approach the conversation around restorative justice.”

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