The scope of federal pardons is relatively limited. But descheduling the drug could be another story.
In a surprise move just a month before the midterm elections, President Joe Biden announced Thursday that he’s taking considerable steps to overhaul America’s federal marijuana laws — including pardoning everyone convicted of simple marijuana possession at the federal level.
The development was a surprise; although Biden campaigned on decriminalization and expunging cannabis convictions, the administration has largely remained quiet on marijuana reform.
“As I’ve said before, no one should be in jail just for using or possessing marijuana,” Biden tweeted. “Today, I’m taking steps to end our failed approach. Allow me to lay them out.”
Biden’s first step was to pardon all prior federal offenses of simple marijuana possession. His reasoning was a nod to the many justice and equity discussions happening around cannabis arrests nationally: “Sending people to jail for possessing marijuana has upended too many lives — for conduct that is legal in many states. That’s before you address the clear racial disparities around prosecution and conviction. Today, we begin to right these wrongs,” Biden tweeted.
Second, he called for governors to do the same at the state level. His third step is to initiate an administrative review of federal marijuana scheduling — the federal classification system that underlies the criminalization of marijuana as a controlled substance at the federal level. “We classify marijuana at the same level as heroin — and more serious than fentanyl. It makes no sense,” Biden wrote.
After Biden’s announcement, other agencies quickly followed suit with next steps. The Justice Department issued a statement that it “will expeditiously administer the President’s proclamation” on pardons, and work with the Department of Health and Human Services to launch a scientific review of how marijuana is scheduled under federal law.
But was this announcement a massive leap forward in federal cannabis policy? Or is it more style than substance, an attempt to drum up support for Democrats ahead of the midterms? Here’s a quick overview of Biden’s action, federal cannabis policy, and the administration’s ever-evolving stance on marijuana legalization.
So just how many people did Biden pardon?
Biden signed an executive order to pardon citizens and lawful permanent residents convicted of simple marijuana possession under federal law and DC statute.
Simple possession occurs when a person has a small amount of a substance on their person or available for their own use. The New York Times reported that the pardons will affect about 6,500 people convicted of simple marijuana possession between 1992 and 2021 under federal law, as well as thousands more under DC code, White House officials said on a call with reporters.
That’s a comparatively small number; most convictions for simple possession occur under state and local laws. According to the ACLU, there were 8.2 million marijuana arrests between 2001 and 2010, 88 percent of them for simply having marijuana. The federal government often charges marijuana cases as conspiracies, meaning there was an agreement between two or more people to violate a federal drug law, rather than simple possession: The New York Times reported that, according to the US Sentencing Commission, only 92 people were sentenced on federal marijuana possession charges in 2017, out of nearly 20,000 drug convictions.
Biden’s presidential authority is limited to issuing pardons for federal convictions; he can’t overturn a record for a marijuana offense at the state or local level. However, BOWL PAC founder Justin Strekal, a longtime cannabis lobbyist in Washington, DC, and the former political director for the National Organization for the Reform of Marijuana Laws, says it’s a step in the right direction, no matter how small: “Could Biden have gone further?” he told Vox. “Yes. But now citizens around the country can leverage that example to build pressure on state and local officials to follow in his footsteps, as some governors already have.”
Biden urged governors to do as he did and review marijuana possession convictions at a state and local level as well. Some governors were far ahead of him: California’s Gavin Newsom and Colorado’s Jared Polis have already issued pardons for low-level cannabis convictions in their states, and Illinois Gov. J.B. Pritzker expunged nearly half a million marijuana arrest records and pardoned thousands more at the end of 2020.
Wasn’t there a bill to legalize cannabis? Does this mean weed is legal now?
Hold on to your lighters — you won’t necessarily be able to spark up in the streets just yet, though cannabis is legal in some form in 37 states.
Meanwhile, federal marijuana legalization has essentially been stopped in its tracks, in part because of the complexities of adopting banking, regulation, and criminal justice reform to accompany legal weed, even though public opinion (even among Republican voters) and state policies are on board with legalization.
However, under the federal Controlled Substances Act, marijuana is classified as a Schedule 1 illegal drug with no medical uses, on par with heroin and LSD, and above fentanyl, which is Schedule 2. Rescheduling marijuana for research was an oft-repeated promise of Biden’s presidential campaign.
Biden’s call for a review of marijuana’s scheduling could dramatically reshape federal policy and ultimately clear the way for legalization — but only if it is removed from the law entirely, not just rescheduled as a Schedule 2 drug. This would be the piece that would allow all the dominoes to fall into place for nationwide legalization with sales to adults over 21 without a prescription, allowing banks to do business with the cannabis industry, and more.
In the meantime, there are several pieces of federal legislation attempting to address the myriad issues around cannabis. They include:
- The Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which also would deschedule cannabis from the Controlled Substances Act and enact criminal and social justice reforms, including the expungement of prior cannabis convictions. It was approved by the House in December 2020, marking the first time Congress moved to end federal marijuana prohibition. (The bill failed to advance in the Senate.)
- The Secure and Fair Enforcement (SAFE) Banking Act, which has been passed by the House six times since it was first introduced in 2013. If the SAFE Banking Act were signed into law, federal regulators would be prohibited from handing down penalties to banks serving licensed marijuana businesses; those businesses would then be able to access financial services like checking accounts and accept payment with credit or debit cards.
- The States Reform Act, framed by Republican lawmakers as an alternative to Democratic-led reform proposals. It would end federal prohibition and regulate cannabis under various agencies, including the Agriculture Department and the Food and Drug Administration, for growers, consumers, and medical marijuana patients, while allowing states to determine their own policies on commerce and other aspects of legalization. It attempts to bridge the partisan divide by including expungements for those with nonviolent cannabis convictions.
- The Cannabis Administration and Opportunity Act, a sweeping bill that aims to delist marijuana from the Controlled Substances Act while recognizing existing state laws; it would enact banking reform, criminal justice reform, and automatic expungement of federal records for nonviolent marijuana crimes.
Whether Biden’s announcement will goose cannabis reform in Congress remains to be seen, but Thursday’s action was undoubtedly a massive boost to the quest to end federal prohibition.
Didn’t Biden fire people for smoking weed?
Dozens of young White House staffers got a nasty surprise in 2021 when they were dismissed after background checks due to admitted marijuana use; the Biden administration initially had indicated that recreational use of cannabis would not be disqualifying. Employee conduct guidelines were also updated to potentially deny security clearance to people who invested in cannabis companies. “Wait, so do I get my job at the WH back?” one former staffer asked on Twitter on Thursday. That remains to be seen.
I thought President Biden was “tough on crime,” and specifically, anti-weed. So how did he come to support cannabis reform?
Over his nearly four decades as a senator from Delaware, Biden was a prominent Democratic leader in spearheading America’s war on drugs. He has long defended his record of being “tough on crime” — including advocating for large increases in federal funding for the drug war and enacting federal policies that disproportionately criminalized low-level drug offenses.
Under the Reagan administration, he worked to create the Office of National Drug Control Policy and in a now-infamous 1989 television interview at the height of the “Just Say No” era, then-Sen. Biden criticized a plan from President George H.W. Bush to escalate the war on drugs as not going far enough. “Quite frankly, the president’s plan is not tough enough, bold enough, or imaginative enough to meet the crisis at hand,” he said, calling not just for harsher punishments for drug dealers but to “hold every drug user accountable.”
Other examples of punitive legislation that Biden helped to enact include the Comprehensive Crime Control Act, which expanded federal drug trafficking penalties and civil asset forfeiture, allowing police to seize someone’s property without proving the person is guilty of a crime. He sponsored and co-authored the Anti-Drug Abuse Act of 1986, which ratcheted up penalties for drug crimes and created a massive sentencing disparity between crack and powder cocaine, fueling significant racial disparities in incarceration. And 1994’s Violent Crime Control and Law Enforcement Act, partly written by Biden, imposed harsher sentences and increased prison funding, contributing to the growth of the US prison population from the 1990s through the 2000s.
But in later years, Biden softened his stance on drugs; in 2007, he backed the Second Chance Act, which provides monitoring and counseling services to former prison inmates. In his last few years in the Senate, he supported eliminating the sentencing disparity between crack and powder cocaine.
In 2020, the number of Americans who supported legalizing cannabis reached a record high, according to Gallup, with 68 percent supporting marijuana legalization. When Biden launched his presidential campaign, his platform reflected the nation’s changing attitude toward cannabis, with support for marijuana decriminalization, rescheduling, and expungements for low-level cannabis convictions.
However, even as he campaigned on marijuana reform, Biden contemplated the possible negative effects of cannabis legalization. “The truth of the matter is, there’s not nearly been enough evidence that has been acquired as to whether or not it is a gateway drug,” Biden said at a town hall in November 2019.
“Biden has evolved a tremendous amount to get to the point where he would take this significant an action,” Strekal says. “And I think this move helps find a pathway to 60 or more votes in the US Senate to agree on a cannabis legalization package.”
Genine Coleman, a longtime cannabis policy activist who serves as executive director of the advocacy group Origins Council, points to a change in an international treaty known as the Single Convention on Narcotic Drugs of 1961 as the reason behind Biden’s evolving stance on marijuana.
In December 2020, the United Nations Commission on Narcotic Drugs voted to change the scope of control of cannabis and cannabis-related substances following recommendations by the World Health Organization in 2019. “WHO came out with findings that cannabis does indeed have medical use and value,” Coleman says, “so they recommended that the UN Commission consider rescheduling the 1961 convention.”
That prompted a process for signatories on the treaty, including the United States, to review the scheduling of cannabis. “So it’s not totally coming out of nowhere,” Coleman says. “It’s actually something that got prompted about two years ago.”
So is this a ploy to get voter support for the midterm elections? Or is it a real shift in policy direction?
Nishant Reddy, CEO and co-founder of A Golden State and Satya Capital, has served as an advisor to Sen. Cory Booker (D-NJ) on cannabis policy. Reddy was pleasantly — but not entirely — surprised by Biden’s announcement.
“We’re just a few weeks away from midterm elections, so I do think there’s a little bit of strategic political play with this,” Reddy says. “That being said, it’s an exciting step in the right direction for those who are facing the negative consequences of unfair policing regarding cannabis.”
Attorney David Holland, a partner with Prince Lobel Tye LLP and the executive director of Empire State NORML, sees it as Biden moving toward cementing his progressive legacy, rather than attempting to gain voter support.
“Biden doesn’t stand to gain anything by it, per se. This is only the midterm; he’s got another couple years to go,” Holland said. “I think he’s trying to align himself with progressive politics that undo at least some of the harms of the drug war, and to set up a platform for two years from now that shows him to be a leader in causes relating to equity, justice, economic development, and so on.”
News of the pardons is dominating media coverage, but Holland says the most meaningful part of Biden’s announcement is the review and possible change in the federal status of cannabis as a controlled substance. “He’s setting the stage for future action,” says Holland. “There is definitely a paradigm shift coming over the next two years going into the 2024 election.”
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