Examining the Historical Disparities in Cannabis-Related Legislation and Illuminating the Ongoing Struggle for Medicinal Legalization
In the Controlled Substances Act of 1970, the federal government categorized marijuana as a Schedule I substance, where it remains to this day. Schedule I is the harshest categorization out of the five levels of controlled substances where drugs are considered to have high potential for abuse by users. Moreover, Schedule I substances are those that have no accepted medical purpose in the United States. The Controlled Substances Act was controversial for a multitude of reasons, most significantly for the perceived weaponization of cannabis by the federal government for political and discriminatory motivations. Proponents of this belief contend that cannabis is nowhere near as volatile, addictive, or harmful as other substances categorized under the Schedule I classation, which includes heroin and fentanyl.
Fentanyl is a highly-potent substance recognized to be very dangerous for its potential of causing a user’s breathing to slow and stop. In 2021, it was involved in 63.3% of the 106,699 drug-related overdose fatalities in America, accounting for 67,325 preventable deaths in the year alone. While overdose deaths involving heroin have steadily decreased since 2016, they still accounted for a significant 8.59% of overdose fatalities in 2021, with 9,173 reported deaths. Furthermore, it is important to note that fatal drug-related overdoses are likely underreported, as drugs involved in overdoses are not always specified as contributing factors on official death certificates.
In comparison to fentanyl and heroin, which are both recognized to be highly dangerous substances, there has been much contention regarding cannabis being labeled a Schedule I substance. Despite cannabis being the most commonly used illegal drug in America, it is very rarely considered the causal factor in drug-related overdose fatalities. In England from 1998 to 2011, deaths following cannabis usage alone were rare, accounting for merely 4% of drug-related overdose fatalities. Moreover, while the majority of Schedule I substances have a high risk of poisoning for users, in 2020, there was only one case that cited cannabis toxicity, or when a user consumes too much cannabis, as a cause of death. Researchers have described the risk of death from cannabis toxicity as statistically insignificant and negligible. While there are genuine risks and harms relating to cannabis usage, these statistics indeed beg the question of whether it is dangerous enough to be classified as a Schedule I substance.
This nuanced debate is underscored by the racially prejudiced origins of cannabis prohibition in America that reportedly dismissed scientific research. The first rounds of federal restrictions against cannabis usage began in the early 20th-century amidst New Deal reforms. Many historians argue that the intentions behind the 1937 Marijuana Tax Act were to discriminate against African American and Latinx jazz musicians who used cannabis. Martin Lee, author of Smoke Signals: A Social History of Marijuana, commented on the racist weaponization of cannabis in the 1930s, reporting that “segregated American newspapers were writing, “this stuff [cannabis] makes white women and Black men have sex.’” This encapsulates merely one of countless examples of early 20th-century American media outlets using cannabis as a medium to unjustly portray Black citizens as threatening. The racially prejudiced roots of marijuana restrictions continue to persist, with cannabis arrests disproportionately arresting racial minorities. Racial minorities are significantly more likely to be arrested and incarcerated for marijuana possession, with a 2020 analysis by the American Civil Liberties Union finding Black people to be on average 3.64 times more likely than white people to be arrested for marijuana possession, with the article reporting “Black people were up to six, eight, or almost ten times more likely to be arrested.” The racialized prohibition of cannabis continues today, with minorities being significantly more likely to be arrested for cannabis usage or possession than white citizens.
“Marijuana has never been determined to be medicine…there’s no safe, effective, medical use, and a high abuse potential, and it can’t be used in medical settings”.
Despite such public statements from 2016 by Russ Baer, staff coordinator in the Office of Congressional and Public Affairs at the DEA, there is an extensive canon of research promoting the benefits of using marijuana as a medical treatment . David Downs of the Scientific American writes that Baer’s stance reflects the DEA’s “Kafkaesque” and “bureaucratic” perspectives in regards to marijuana-related laws, alluding to the DEA’s stance being diametrically opposed to the growing scientific consensus. Downs argues that the DEA’s perspective is “impervious to the opinion of the majority of U.S. doctors–and to a vast body of scientific knowledge” backed up by experts in related fields. In fact, the National Institute of Health reports that the pain relief aspects of medical marijuana are “substantial.” In one experimental survey, the average pretreatment pain reported by participants on a 1-10 scale was 7.8–significantly higher than the average post-treatment pain reported by participants, being 2.8. This significant reduction in pain contradicts Baer’s argument of marijuana having no “safe, effective, medical use,” contending that medicinal marijuana has significantly positive effects on pain reduction in select patients.
In accordance with the growing scientific consensus, there have been an onslaught of advancements in the legalization of both medical and recreational marijuana since the CSA’s ratification in 1970. In 1996, California became the first U.S. state to legally permit the usage of medical marijuana under Proposition 215, also known as the Compassionate Care Act. This legislation allowed Californian citizens with serious illness the right to obtain and use cannabis for strictly medicinal purposes. This was only allowed in cases where a physician explicitly deemed marijuana to be an appropriate treatment that would directly improve the patient’s health and/or wellbeing. Following suit, eight states passed laws allowing the usage of medical marijuana in the 2000s.
Today, the journey to legalize the usage of medical marijuana in all 50 states is still ongoing, with efforts to legalize the usage of recreational marijuana being even more complex and politically difficult. As of April 2023, 38 states, three territories, and the District of Columbia allow medical usages of marijuana. Many researchers and physicians are hopeful that this number will increase in the near future, with these aspirations being supported by the recent enactment of the Medical Marijuana and Cannabidiol Research Expansion Act (MMCREA), which President Biden signed on December 2nd, 2022. This Act seeks to ease the previously strict and complicated restrictions for research involving the usage and effects of cannabis. Researchers hope that this Act will accelerate the development of newer and safer medical cannabis products for consumers, as well as provide further evidence supporting the significant benefits of cannabis usage in most medical settings.
Given America’s storied relationship with marijuana, every gradual step forward in the battle to destigmatize cannabis usage is immensely gratifying. Current legislation is capable of shifting the course of medical history, finally beginning to rewrite and unravel the structural patterns of racial discrimination that have been encoded into America’s legal system.
Cat Gao is a freshman at Brown University, planning on double concentrating in Philosophy and Literary Arts. She is a staff writer for the Brown Undergraduate Law Review and can be reached at cat_gao@brown.edu.
Mira Echambadi is a junior at Brown University, double concentrating in Applied Mathematics and International and Public Affairs. She is a blog editor for the Brown Undergraduate Law Review and can be reached at mira_echambadi@brown.edu.