Everyone knows that beginning in 1996 a wave of state medical cannabis laws broke over America, drenching a society parched and cracked by sixty (minus one) years of federal cannabis prohibition. Everyone knows that cannabis is still prohibited for all purposes (except stringently-regulated research) under federal law.

The United States government implements federal drug prohibition through the Controlled Substances Act (the “CSA”), which appears in the United States Code at Title 21, Sections 801 through 904. The CSA does not actually prohibit all drugs for all purposes: it establishes criminal penalties for all actions in connection with certain “drugs or other substances” other than in compliance with the CSA’s provisions. The CSA creates five “schedules” of drugs, Schedules I through V; when Congress drafted the CSA in 1970 it made the initial placement of substances into the Schedules. It is most important to us here at Psychedelic Law that Congress placed cannabis, LSD, psilocybin, mescaline and ibogaine (among other psychedelics) in Schedule I. (Although the DEA likes to say that Congress made all the decisions about what drugs belong in what Schedules, ever since 1970 it has been the DEA that “schedules” drugs which it deems have potential for abuse and fights ferociously to keep cannabis permanently prohibited in Schedule I). The DEA put MDMA in Schedule I in the 1980s. Substances in Schedules II through V can be prescribed by “practitioners” (which, for current purposes, I will describe as physicians); Schedule I substances are not available, even by prescription. 

The criteria for Schedule I placement are as follows: (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 and (c) there is a lack of accepted safety for use of the drug or other substance under medical supervision. 21 U.S.C. 812(b).

Of those three scheduling criteria, number two – no currently accepted medical use in treatment – is the most critical, the reason being that it is unique among all the Schedules. As I have said before at various times, drug prohibition can be defined as follows: the criminal prohibition of the manufacture, sale, purchase, possession and use of a drug except for medical purposes which are defined as narrowly as possible by police. In other words, medical use is an exception to prohibition, but with Schedule I there is no exception to prohibition – because the federal government says there is no medical use. Prohibition of a Schedule I substance is absolute, even when a patient claims that use of the substance is necessary to save her life or relieve excruciating pain.

Now, placement in Schedule I is not the only manifestation of prohibition. Cocaine is in Schedule II meaning that it can be prescribed; it is sale of cocaine without a prescription that is criminal and manufacture or import without the proper DEA licenses is also illegal. Ritalin, Oxycontin, and morphine, for example, are also in Schedule II. When the DEA attacks physicians for their prescribing practices as to opiates in Schedules lower than Schedule I, you are actually witnessing another manifestation of prohibition – but concerning substances that are not completely prohibited for all purposes. It is more proper then to say that the subject of prohibition is the use of a particular drug, not the drug itself. It just so happens that in the case of Schedule I drugs, NO uses are permitted.

It is important to note that even if a drug or other substance is in Schedules II through V but is not approved for marketing by the FDA it still cannot be legally prescribed. So what good is it to move cannabis or any other psychedelic (or any other drug) out of Schedule I? Frankly, I don’t know – you perhaps avoid certain criminal liability but you do not achieve legal status under federal law and you certainly do not achieve the general right for adults to use cannabis in a manner analogous to alcohol, i.e. as part of a lifestyle choice. I understand that moving substances out of Schedule I makes research easier; that is a matter that requires further examination.

Still, I am focusing on the issue of the DEA’s refusal to allow cannabis out of Schedule I because it is the frontline of combat in the American drug war, if only as a matter of government rhetoric. The federal government has committed itself to the extreme position that there is no medical use of cannabis; it has staked its credibility on this impossible and incredible argument.

The DEA’s legal reasoning demonstrates that it is ideologically committed to maintaining complete prohibition of cannabis by any means necessary: when the federal government will not acknowledge any medical use of cannabis, as if it were committed to exterminating heresy, obviously no rational dialogue is possible.

When arguing with the DEA, you are arguing with madmen who, like their prohibitionist constituency, are maniacally obsessed with preventing any legal use of cannabis for any reason, even to save a live. These madmen rule you and your ability to attain physical and mental states which they deem wrong and, therefore, by extension they control the most intimate aspects of human existence – sensation and cognition, individually and cumulatively. It is necessary to deconstruct the DEA’s arguments and demonstrate how their legal reasoning works in order to demonstrate that they are mad. Perhaps then it will be possible for society to disarm the madmen.