The Controlled Substances Act created a five-category scheduling system for most legal and illegal drugs (although alcohol and tobacco were notably omitted). Depending on what category a drug is in, the drug is either subject to varying degrees of regulation and control (Schedules II through V) — or completely prohibited, otherwise unregulated and left to criminals to manufacture and distribute (Schedule I). The scheduling of various drugs was decided largely by Congress and absent a scientific process — with some strange results.

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For instance, while methamphetamine and cocaine are Schedule II drugs, making them available for medical use, marijuana is scheduled alongside PCP and heroin as a Schedule I drug, which prohibits any medical use. Making matters worse, the CSA gives law enforcement — not scientists or health officials — the final say on how new drugs should be scheduled and whether or not old drugs should be rescheduled. Unsurprisingly, law enforcement blocks reform.

Starting in 1972, the Drug Enforcement Administration obstructed a formal request to reschedule marijuana for 16 years. After being forced by the courts to make a decision, the agency held two years of hearings. The DEA chief administrative law judge who held the hearings and considered the issue concluded that marijuana in its natural form is “one of the safest therapeutically active substances known to man” and should be made available for medical use. Similar hearings on MDMA, a.k.a. ecstasy, concluded that it also has important medical uses. In both cases, the DEA overruled its administrative law judge and kept the drugs in Schedule I, unavailable for medical use.

The current drug scheduling system is also structurally flawed. For instance, Schedule I is for drugs that are highly addictive and have no medical value, while the other schedules are for drugs with medical value but varying degrees of safety and addiction risks. There are no categories, however, for drugs that have no medical value but have not proved to be highly addictive either, such as various synthetic drugs like “spice” or “bath salts.” Nor are there categories for drugs that are waiting to be evaluated for medical use.

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In a report published in the esteemed medical journal the Lancet, researchers at the Independent Scientific Committee on Drugs proposed an alternative method for drug classification in the United Kingdom that might work in the United States. This new system uses a nine-category matrix to assess the harms of a range of licit and illicit drugs. The new evidence-based classification system recognizes the fact that alcohol and tobacco cause far more individual and social harms than marijuana, LSD and MDMA, which have less potential for harm relative to other legal and illegal drugs.

The Controlled Substances Act was passed in 1970. Forty-six years and eight presidents later, it remains almost exactly as it was enacted (the only major changes have been more draconian penalties such as mandatory minimum sentencing or prohibiting students arrested for drugs from receiving student loans). While federal drug policy hasn’t changed much since President Nixon, individual states have moved in a new direction. Twenty-four states and the District have legalized marijuana for medical use; four states and the District of Columbia have legalized marijuana for nonmedical use. The federal system is too inflexible to keep up and should be thoroughly redesigned.

At a minimum, responsibility for determining drug classifications and other health determinations should be completely removed from the DEA and transferred to a health or scientific body. Congress should overhaul the entire scheduling process to ensure that decisions on whether to criminalize a drug or not, and whether and how to regulate it, are decided by an objective, independent scientific process.

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An independent body such as the National Academy of Sciences should be appointed to conduct a comprehensive evaluation of the drug scheduling system. This evaluation should determine if each drug is properly classified, the best way to assess the risks and benefits associated with current and emerging drugs, and how to best redesign the scheduling system. Treating drug use as a health issue instead of a criminal justice issue will require fresh thinking.