Rescheduling Marijuana: What It Means (and Doesn’t) for Criminal Justice Reform

By Angela George, Shawn Hauser

Nov 3, 2025

Key Summary

Marijuana products remain federally illegal until approved by the FDA, and only three cannabis-based drugs have received such approval to date.
Most marijuana-related criminal charges and penalties remain intact, as many CSA provisions specifically target marijuana regardless of its schedule; only penalties unique to Schedule I substances no longer apply to marijuana, such as certain advertising restrictions.
- Note: Marijuana dispensaries remain in violation of the CSA under Schedule III.
Federal restrictions on benefits, employment, and firearm ownership remain, and prior convictions are unaffected by rescheduling.

The DEA’s proposal to move marijuana from Schedule I to Schedule III under the Controlled Substances Act marks a historic shift in federal policy by formally recognizing marijuana’s medical use and lower abuse potential. Yet, despite this reclassification, its effect on the criminal justice system is minimal.

Biden’s Marijuana Reform Goals vs. the Reality of Rescheduling

While rescheduling acknowledges progress, it stops short of achieving the broader criminal justice reforms President Biden envisioned when he directed federal agencies to review marijuana scheduling in 2022.

In his October 2022 proclamation, President Biden acknowledged that “sending people to prison for possessing marijuana has upended too many lives” and that despite similar usage rates across racial groups, “black and brown people have been arrested, prosecuted, and convicted at disproportionate rates. He also noted how criminal records for marijuana possession continue to impose “needless barriers to employment, housing, and educational opportunities.”

Yet, as this analysis makes clear, rescheduling alone does not remedy these harms, since marijuana remains a federally controlled substance subject to most of the same criminal penalties and collateral consequences.

What Does Rescheduling Mean for Marijuana Legalization?

While Schedule I classification is reserved for substances defined as having “no accepted medical use and a high potential for abuse” (like heroin, LSD, and ecstasy), Schedule III classification includes those substances defined as having “moderate to low potential for physical and psychological dependence,” while recognizing accepted medical uses such as ketamine, testosterone, and Tylenol with codeine.

However, even under Schedule III, marijuana will remain illegal at the federal level until the substance gains approval from the federal Food & Drug Administration (FDA) or until Congress passes a federal regulatory framework for marijuana.

The FDA drug approval process is complex and multi-phase, typically requiring over a decade of research and can often cost more than $1 billion per new medicine, due to the extreme rigor and high failure rate of clinical trials. Marijuana flower, as a botanical, poses additional challenges for approval under this framework. To date, there are only three approved cannabis-based drugs, and FDA approval timelines historically move at a glacial pace.

CSA Rescheduling: Changed Legal Classification, Same Status Quo

Despite marijuana’s proposed reclassification as a Schedule III substance being less restrictive than its former Schedule I classification, the majority of marijuana-related criminal charges and penalties largely remain the same.

The path to fully eliminate federal criminal sanctions is descheduling, because as long as marijuana remains on any CSA schedule (I through V), consumers and operators are subject to criminal penalties under the CSA.

This is because very few major criminal penalties under the Controlled Substances Act depend solely on Schedule I classification. Most federal marijuana crimes, including possession, manufacturing, and distribution, are tied to the quantity of “marihuana” involved, not its schedule. In other words, changing marijuana’s schedule does not affect the base offenses or sentencing thresholds that drive most prosecutions under federal law.

Marijuana-Specific Criminal Penalties Under Schedule III

The Controlled Substances Act (CSA) explicitly contains marijuana-specific criminal provisions and general prohibitions that apply regardless of a substance's schedule. As noted above, most criminal penalties under the CSA hinge on the quantity of ‘marihuana’ involved rather than its schedule classification.

Specific CSA sections, including those providing enhanced penalties (21 U.S.C. 842 and 843), and restrictions on dispensing only for a medical purpose (21 U.S.C. 829(c)), would still render every adult-use market transaction a federal crime. Ancillary businesses will still face regulatory risk because Schedule III does not change the core federal criminal status of the state-legal retail model.

Absent an intentional revision of this language by Congress, federal penalties for marijuana remain largely intact – the same as they’ve been since the CSA’s passage in 1970. Data is clear that federal and state enforcement disproportionately targets communities of color, with marijuana possession being the largest driver of drug arrests—accounting for approximately 35% of all drug arrests nationally. The disproportionate social harms of drug-related incarceration felt by communities of color can be linked directly to the enforcement of low-level marijuana possession crimes.

How Controlled Substance Laws Still Apply to Marijuana

Many provisions of the CSA apply broadly to all scheduled substances. Under these provisions, marijuana, if reclassified to Schedule III, would still be subject to the same general prohibitions as any other controlled substance.

For example, simple possession of a controlled substance still constitutes the same offense as possessing marijuana without a valid prescription. While marijuana would be reclassified as a Schedule III controlled substance, its legal possession would still require a prescription approved by the U.S. Food and Drug Administration (FDA), as is the case with other Schedule III substances such as ketamine, buprenorphine, or prescription anabolic steroids.

Generally Applicable Schedule I Penalties Removed

The primary substantive change in federal criminal treatment of marijuana concerns penalties specific only to Schedule I substances.

For example, marijuana no longer falls under the purview of 21 U.S.C. § 843, which outlines advertising restrictions specific to Schedule I substances.

Collateral Consequences & Criminal Justice Impact

Despite rescheduling, most collateral consequences for marijuana use and marijuana-related convictions, such as ineligibility for federal assistance programs or benefits, termination or ineligibility for employment, and firearm prohibitions, remain intact without further legislative action.

Prior marijuana-related convictions, even those specific to Schedule I substances, also remain unaffected by rescheduling. Further legislative or administrative action would be needed to implement any expungement or resentencing scheme for prior marijuana-related offenses.

Positive Impact on Sentencing Decisions

The downward shift to Schedule III offers indirect relief to the criminal justice system by fundamentally changing the drug’s judicial perception. Because a drug’s classification influences the seriousness of the offense during sentencing, judges and federal prosecutors will now have legal justification to view marijuana as a substance with an accepted medical use and a lower abuse potential. This officially signals a federal de-prioritization that can lead to lower charging minimums, more favorable plea negotiations, and lighter sentences for non-violent marijuana crimes compared to offenses involving Schedule I or II drugs.

Although this change falls short of urgently needed reform and does not alter existing cannabis-specific laws, it may still encourage courts and prosecutors to further de-prioritize enforcement against non-violent, state-legal conduct and help narrow the scope of potential criminal liability for cannabis-related activities.

Marijuana Rescheduling vs. Descheduling: Why the Difference Matters

While rescheduling itself does little to address the broader harms of the War on Drugs, which has disproportionally impacted minority communities, it may serve as the incremental step towards descheduling, which would be necessary to fully remove criminal penalties and implement comprehensive reform.

Rescheduling may also catalyze lower criminal penalties for marijuana-related crimes at the state level. As many states replicate federal law for controlled substance classifications, the downward shift allows states to penalize marijuana-related offenses at this lower level, should they base state penalties on scheduling classification (instead of specifically on the term “marijuana”).

Rescheduling also opens the door for further conversations and shifting perspectives on the substance, which is an instrumental step forward in rectifying the harms brought about by the decades-long War on Drugs.

Vicente LLP continues to monitor federal cannabis rescheduling developments and their implications for businesses, policymakers, and advocates. Vicente’s attorneys work at the intersection of law and policy to advance responsible cannabis regulation and support equitable, evidence-based reform.

For guidance on navigating cannabis policy or engaging in federal advocacy efforts, contact us today.