As prohibition persists at the federal level, a new bill floated by a Michigan legislator asks a bold question: Can individual states deschedule cannabis at the state level? And if they do, what exactly will they accomplish?
In 2018, Michigan voters approved adult-use legalization via ballot initiative Proposal 1. Yet the initiative couldn’t cover every nuance of legalization. To help fill those gaps, Michigan Representative and Democratic Floor Leader Yousef Rabhi introduced House Bill 5877 earlier this month. In an unprecedented move, HB5877 would fully remove cannabis from Michigan’s state controlled substance list. (Yes, states typically have their own controlled substance lists in addition to the federal list.)
Many gray areas still left unresolved
Rabhi argues that his bill would resolve issues left in a legal gray area by statewide legalization laws—like housing and employment discrimination. State-level descheduling can’t solve all of the problems created by federal prohibition, but the introduction of Rabhi’s bill highlights—and elevates—the need for reform at the federal level.
National legalization experts are similarly aware of the remnants of Drug War laws left straggling but alive in the wake of statewide legalization.
“When you draft a ballot initiative, you’re often constrained by which policies you can change,” Matthew Schweich, deputy director of the Marijuana Policy Project (MPP), told Leafly. Schweich served as the director of Michigan’s Proposition 1 campaign in 2018. “It’s often the case that a ballot initiative doesn’t fix every problem. Then you need legislatures to take action afterwards to essentially ensure that the other laws in the state align with the policy approved by voters.”
A veteran activist pushes for change
Rep. Rabhi is no stranger to drug reform advocacy in Michigan. For years, he championed legalization in the state, with an emphasis on both racial justice and economic pragmatism. “The War on Drugs…is a war against people of color,” he told the crowd at Ann Arbor’s Hash Bash in 2017. “The reality is, whether you like it or not, people are using marijuana. Prohibition doesn’t work.”
Rabhi frames his new bill as a way to tidy up and streamline existing state law. “We need to make sure that when we look at our law books, our laws are not continuing to criminalize activities that voters have overwhelmingly said should be legal,” he told Leafly.
What would descheduling accomplish at the state level?
Rabhi argues that HB5877 could have a larger impact on residents’ day-to-day lives than federal descheduling. “A lot of people don’t realize that [in addition to] the federal scheduling, there’s also a state schedule,” he explained. “There are dozens of laws connected to the state schedule. Even if there was a successful effort in Washington to deschedule cannabis, it still would not necessarily change the state law books.”
Rabhi explained that HB 5877 would resolve many of the challenges that cannabis consumers face in Michigan around housing and employment discrimination. He also noted that the bill would prevent the state from using cannabis consumption as a justification to remove a child from a parent’s custody, including medical marijuana patients.
“When Child Protective Services goes into a house and sees someone using cannabis…they can use that against them” due to marijuana’s status on Michigan’s state schedule of controlled substances, he explained. “That needs to change. If we take it off that list, it can no longer be used against parents in those kinds of cases.”
In fact, Leafly covered an infamous case that arose in Michigan from 2014 to 2017. When police and paramedics responded to a medical emergency at the home of Max Lorincz and Erica Chittenden, a deputy spotted medical marijuana in the couple’s kitchen. As a result, the couple’s four-year-old son Dante was taken away by the state’s child protective services agency. Lorincz and Chittenden endured a nightmarish three-year fight to win back custody of their son. At the time, medical marijuana was fully legal in Michigan and Lorincz was a registered patient.
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Federal scheduling limits the scope of statewide descheduling
While HB 5877 could make a huge impact on Michiganders’ lives, it remains an imperfect solution. For instance, even if the Michigan Legislature passes the bill, federal law would continue to prohibit gun owners from legally possessing cannabis.
Rabhi also acknowledged that his bill does not prohibit an employer from drug-testing their employees, although descheduling would come into play if an employer required testing for state-scheduled substances, specifically.
Schweich, of the MPP, agreed that bills like HB 5877 are worth fighting for even if they don’t solve every roadblock created by federal prohibition. “Elected officials should do everything they can to enact the best possible cannabis laws at the state level,” he told Leafly. “[But] it’s true that until we fix federal cannabis policy, there’s going to be unnecessary difficulties for people and for businesses.”
As for the timing of the bill, Rabhi doesn’t think it’ll pass overnight. “In all honesty, it’s going to be the beginning of a long conversation,” he said.
Both Rabhi and Schweich told Leafly the bill could inspire other state governments to pass their own versions and create momentum for federal change.
“Eventually we’ll hit a tipping point and this conflict between state and federal law will be completely untenable,” Schweich said. “It’s going to come soon. How soon is the big question.”