Last week, President Joe Biden — a driving force behind the 1994 crime bill which accelerated mass incarceration in America—announced a three-step plan for marijuana reform which began with a pardon for “all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana.” The pardon is a welcome development for those invested in dismantling the carceral state. But a closer look at the limits of the plan’s impact reveals that much more still must be done to achieve justice around the issue of marijuana laws.
According to the White House there isn’t currently anyone in federal prison for simple marijuana possession, so the plan will primarily involve expunging records rather than releasing those serving sentences. And while the pardon will reportedly benefit an estimated 6,500 people, nearly 400,000 people are currently locked up for drug offenses, and hundreds of thousands of others have been released with damaging criminal records impacting their day-to-day lives. The pardon does not apply to those convicted of selling marijuana, for example — a much larger group — even though marijuana is now a legal, multi-billion dollar business operating in 19 states with five more on the ballot in 2022. The pardon also explicitly states that it “does not apply to individuals who were non-citizens not lawfully present in the United States at the time of their offense.”
Yet despite the limits of the plan’s reach, advocacy groups still largely cheered the news.
Sarah Gersten, Executive Director and General Counsel for The Last Prisoner was “thrilled” by Biden’s announcement. So too was Kassandra Frederique, Executive Director of the Drug Policy Alliance. Erik Altieri, NORML’s Executive Director, was a bit less linguistically enthused, but still “pleased.” Decades of advocacy work has preceded this moment, which helps explain why it’s being treated as a victory for marijuana reform. But to determine whether or not this announcement will lead to deeply impactful change we have to look beyond the pardon and into the uncertain future. As the statements of all three aforementioned advocates point out, for President Biden to make a real impact on marijuana incarceration, this has to be the first step of many more.
Gersten continued, “We will continue to call on his administration to release those still incarcerated in federal prison for cannabis offenses other than simple possession.” Meanwhile, Frederique offered some more specifics: “We… hope that the Biden Administration will go further and fully deschedule marijuana from the Controlled Substances Act (CSA), rather than initiate a process that could lead to rescheduling.” And Alteri added a pointed note, writing, “Moving forward, the Administration must work collaboratively with Congressional leadership to repeal America’s failed marijuana criminalization laws.”
One of the most startling elements of Biden’s announcement was the language he used, as well as the additional steps he laid out.
“As I often said during my campaign for President, no one should be in jail just for using or possessing marijuana,” Biden said. “Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit. Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities. And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.”
The language is somewhat incongruous — if “no one should be in jail for using or possessing marijuana” then why should the person who sold it to them remain locked up? But the message is clear and unwavering, and it goes much further than statements made by prior presidents. Regardless of the limits of the action itself — and the damaging past of the man saying it — it is still encouraging to hear a president flatly state that no one should be in jail for using marijuana and acknowledge the systemic racial inequities that have defined the war on drugs.
Following the pardon, President Biden said he will urge governors to offer identical pardons on the state level. This could deepen the impact and lead to thousands of more people being pardoned, but it depends on what “urging” will mean exactly. Will there be consequences for not offering the pardon? Will any federal funds be offered or withheld? There will be some Democratic governors who follow suit — Gov. Jared Polis of Colorado, for example, recently issued a similar pardon. But further incentives (and disincentives) would likely help push things along on the state level.
The third step is the most intriguing — and potentially the most impactful. “I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law,” Biden continued. “Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances. This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine — the drugs that are driving our overdose epidemic.”
Schedule I is comprised of substances “with no accepted medical use and are prone to abuse.” Cocaine isn’t even considered Schedule I, because cocaine hydrochloric solution is used as a topical anesthetic. Meanwhile, studies have shown marijuana to be effective in pain management, as an antiemetic for chemotherapy patients, and for reducing spasticity symptoms in MS patients. It’s worth noting that studies on medicinal marijuana have been rather limited due to its Schedule I status, so its usage may be far more robust than its current applications.
Rescheduling and descheduling marijuana would open up the substance to far more direct medicinal applications, as well as present an array of research opportunities. But the difference between rescheduling and descheduling is a big one. Moving marijuana to a Schedule II or below would remove some hurdles, but removing marijuana from the schedule entirely (desheduling) is what advocates have been pushing for. Descheduling would, in many ways, mean an end to marijuana prohibition, the enforcement of which costs about $3.6 billion per year. It would open up marijuana to research and medical applications on a much grander scale, and enable it to be treated — and taxed — more like alcohol on a state level.
Right now, marijuana is federally illegal, and rescheduling it wouldn’t change that. It would lighten restrictions, but it is not legalization and it will not solve banking issues and jurisdictional confusion. Plus, this approach makes it prone to a quick reversal from future administrations.
This is a reason why some advocates want action through Congress. The MORE (Marijuana Opportunity Reinvestment and Expungement) Act, which doesn’t grant full legalization, but decriminalizes marijuana on a federal level rather than rescheduling it, was passed by the House in 2020, and again this past April, but has since stalled out in the Senate, due largely to opposition from Republicans as well as some moderate Democrats.
Whether or not Biden’s action will be the first step in transformative change or simply a political maneuver ahead of the midterm elections remains to be seen. Though Biden has requested the scheduling review be expeditious, the administration has already tempered expectations of an impending re- or descheduling announcement, saying it will, “Take some time because it must be based on a careful consideration of all of the available evidence, including scientific and medical information that’s available.”
Gallup has been tracking support for marijuana legalization since 1969 — when it sat at a dismal 12%. Since 2013, a majority of Americans have supported legalization, with an all-time high of 68% backing the idea last year. The tide has swayed, significantly. Whether or not this is the beginning of the end for punitive marijuana laws remains to be seen.