Everything Biden’s Pardon for Marijuana Convictions Does and Doesn’t Do

Everything Biden’s Pardon for Marijuana Convictions Does and Doesn’t Do

Everything Biden’s Pardon for Marijuana Convictions Does and Doesn’t Do

The order speaks not only to the rapidly changing politics of this issue but also to how much more we urgently need to address.


The president’s issuing blanket pardons for all federal convictions of simple marijuana possession is, to put it in Biden-esque tems, a big fucking deal. At least 6,500 people charged with federal pot possession dating to 1992 will have their convictions overturned, as will an as-yet-unknown number of folks convicted as far back as the 1970s. Thousands more convicted of simple pot possession under Washington, D.C., drug laws will also have their convictions scrapped. Just as importantly, after more than 50 years of the federal government rating pot as in league with heroin and fentanyl, the president announced that Attorney General Merrick Garland and Health and Human Services Secretary Xavier Becerra have been tasked with “expeditiously” reassessing pot’s categorization as a Schedule I drug. Considering the fact that its status deems it a substance with “no currently accepted medical use,” despite pot’s being legalized in at least 37 states for precisely that purpose, the move seemed long overdue. It’s no wonder the Internet applauded the president’s order by flooding social media with “Dank Brandon” memes.

But there are more than a few reasons to hold off on taking a celebratory hit off your vape for now. Sure, Biden’s mass pardons will undeniably offer some degree of relief to people who, because of federal pot possession convictions, have endured decades of discrimination costing them jobs, housing aid, education funds, and a slew of other opportunities. But as the Department of Justice was careful to note in its press release, though the pardons will restore civil liberties, such as the “right to vote, to hold office, [and] to sit on a jury,” they will not “expunge the conviction” from people’s criminal records. Even the American Medical Association called on states to expunge cannabis-related charges that are no longer relevant as a result of pot decriminalization or legalization, citing removal of those charges as necessary to dump the “baggage associated with a criminal record.” The old Biden 2020 campaign website, which is still online, includes a promise to “automatically expunge all prior cannabis use convictions.” It was a good idea then, and a good idea now, since it’s really the only way to prevent unfair collateral consequences from mounting.

Just as critically, no one will be freed from federal jail for a simple pot possession conviction, because there is no one serving time in federal prison for that charge. But an estimated 3,000 people currently sit behind federal bars for pot possession in tandem with other nonviolent offenses—selling, conspiracy, trafficking, you get the picture. The thing is, it also gets pretty murky when you start looking closely at the line between “nonviolent” offenses and “violent” offenses, because a person can be charged with a “violent” crime without any actual violence taking place. As JustLeadershipUSA President DeAnna Hoskins explained to me in 2020, if a person is apprehended for selling pot while carrying a gun they never used, they’re still likely to face “aggravated” charges. And as studies prove again and again, black folks “are more likely to be stopped by the police, detained pretrial, charged with more serious crimes”—that is to say, overcharged—“and sentenced more harshly than white people.”

Another shortcoming of Biden’s order is that it won’t serve undocumented folks, explicitly omitting pardons for “individuals who were non-citizens not lawfully present in the United States at the time of their offense.” Meanwhile, more than “45,000 people whose most serious conviction was marijuana possession” have been deported since 2003, according to the Immigrant Defense Project. The organization also notes that “federal immigration authorities regularly deny green card and citizenship applications due to marijuana possession convictions.” Members of the military aren’t covered either.

The folks who benefit the least from Biden’s order are those convicted of pot possession at the state level, where a staggering 98 percent of marijuana convictions happen. In 2019 alone, according to the Last Prisoner Project, about 546,000 folks were arrested for pot-related crimes, and roughly 22,000 people are serving time for marijuana-tied crimes in state and local jails right now. Though it could be more, because our criminal justice system, which comprises thousands siloed local departments, does an abysmal job of collecting and releasing that sort of data. Biden doesn’t have the power to issue pardons at the state level, though he did implore governors to follow his lead, stating that “just as no one should be in a Federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either.” The results of that call, as you might expect, were mixed, with responses predictably falling largely on either side of the partisan divide. Democratic governors and gubernatorial candidates such as Stacey Abrams in Georgia, Beto O’Rourke in Texas, and Governor Ned Lamont in Connecticut mostly “applaud[ed]” Biden’s move and signaled alignment in thinking, though some expressed the likelihood that they would be impeded by their legislatures. Republican Governor Greg Abbott in Texas suggested this would only worsen “a criminal justice system run amuck” (sic). Arkansas Governor Asa Hutchinson claimed rescheduling pot downplays “the science that is behind the different categories of drugs,” and accused Biden of having “waved the flag of surrender in the fight to save lives from drug abuse.” He stopped just short of warning that pot would lead to race-mixing in jazz speakeasies.

Any remaining hand-wringing over pot as a threat to civilized society is both unscientific and frankly, kind of dumb. Harry Anslinger, the first head of the Federal Bureau of Narcotics, which preceded the Drug Enforcement Administration, succeeded in criminalizing marijuana in 1937 through a campaign of racial fearmongering, once declaring, “Reefer makes darkies think they’re as good as white men,” and that it made “white women to seek sexual relations with Negroes, entertainers, and others.” We’ve actually known since the LaGuardia Committee Report on Marijuana, published in 1944, that “marijuana does not lead to morphine or heroin or cocaine addiction,” a finding reiterated by a slew of peer-reviewed, science-grounded studies. President Richard Nixon, who empaneled a commission to look into marijuana and then ignored its findings when it recommended decriminalization, launched the War on Drugs in 1971—and this is according to his own domestic affairs adviser—to strike at white hippies and black folks. As a senator, Biden co-authored the 1994 Crime Bill that, in an era when even Black folks were pushing for tough-on-crime responses to the crack epidemic, helped usher in decades of draconian punishments for drug-related offenses across the board. How fitting that Biden should now acknowledge that “too many lives have been upended because of our failed approach to marijuana,” and take this step to “right these wrongs.”

But there’s obviously more to do, and not all of it is up to Biden. A change to the federal status of an illicit substance requires more scientific inquiry, which is hindered by its status as an illegal substance, creating a circle of bureaucratic processes that means we might be here awhile. Rescheduling pot, meaning moving it to a lower category, will still result in arrests, and a Department of Justice statement noted that the mass pardon “does not have any effect on marijuana possession offenses occurring after October 6, 2022.” Descheduling cannabis all together—removing it from the Controlled Substances Act and legalizing it—would take an act of Congress. This summer, Senators Cory Booker, Chuck Schumer and Ron Wyden filed a bill that would address those issues, including expungement, but it’s gone nowhere; the 2020 Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which the House has passed twice, covered much of the same ground, but has also stalled. Meanwhile, even as at least 19 states have made it legal for adults to smoke pot recreationally, and 27 states have “partially or fully decriminalized some offenses for marijuana possession,” according to NORML, racism continues to affect how laws governing pot possession and usage are applied. In a 2020 report, the ACLU indicated that nationally, “black people are 3.6 times more likely than white people to be arrested for marijuana, despite similar usage rates.” Racial disparities grow even more horrific at the county level, where the ACLU found “places where Black people are more than 20, 30, 40, or even 50 times more likely to be arrested than white people.” Even in states where marijuana is decriminalized or legal, black folks are still “more likely to be arrested for possession than white people.” One of the grimmest findings of the ACLU study is how racism works to ensure that the criminalization of black folks persists when changes in laws might mitigate it. “Since 2010,” when pot laws around the country began to change, “racial disparities [in marijuana arrests] actually worsened in 31 states,” study authors note.

That’s especially disheartening to note, since most states automatically prohibit those with criminal convictions from operating marijuana dispensaries, leaving communities that were most devastated by the racist War on Drugs locked out of pot profits now that marijuana laws are being loosened. In cities including New York and Detroit, “social equity licensing” was supposed to ensure that black folks harmed by draconian drug laws would be included in dispensary ownership, but a Pew Trust investigation found those programs “plagued by delays, lawsuits, computer glitches and corruption allegations” and prohibitive start-up costs. According to the 2021 jobs report from Leafly, which follows cannabis-world trends, “while Black Americans represent 13 percent of the national population, they represent only 1.2% to 1.7% of all cannabis company owners—a gap that is far too wide.” Especially as so many former politicians—some whom helped criminalize marijuana, such as John Boehner, the ex–speaker of the House who today has a cozy board seat at a “marijuana investment firm”—are now trying to cash in on weed in their private industry lives.

There’s no question that issuing mass pardons—which a president hasn’t done since Jimmy Carter extended pardons to men who evaded the Vietnam War draft in 1977—for simple possession are a game changer. Those pardons send a message about what our priorities should be, begin undoing racist marijuana laws that have been on the federal books for nearly a century, and finally bring the executive branch closer in line with an American populace that, according to polls, overwhelmingly supports pot legalization. Arkansas, Maryland, Missouri, North Dakota, and South Dakota will all be weighing in on the recreational pot question this November, and the wheels of decriminalization keep turning. But there needs to be a push for even more at the federal level. And it should continue even after the midterms.

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