The marijuana reforms that President Joe Biden announced today follow through on some of the promises that he made during his campaign, but they will have a limited practical impact. His blanket pardon for low-level marijuana offenders, while long overdue, will affect a tiny percentage of people with federal drug records. Without new legislation, marijuana use will remain a crime under federal law, as will grow and sell marijuana. And while rescheduling marijuana will make medical research easier, it will not make cannabis legally available to patients unless and until the Food and Drug Administration (FDA) approves specific products as safe and effective.
“I think we should decriminalize marijuana, period,” Biden said during a November 2019 presidential debate. “And I think…anyone who has a record should be let out of jail, their records expunged, be completely zeroed out….Everybody gets out, record expunged.” He later qualified that broad language, suggesting his concern was limited to marijuana users charged with simple possession, who are rarely prosecuted under federal law. Today’s announcement fits that narrower focus.
Biden said he is pardoning “all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act.” He said the blanket pardon would help “thousands of people who were previously convicted of simple possession” and “who may be denied employment, housing, or educational opportunities as a result.” While “white and black and brown people use marijuana at rates,” he noted, “Black and brown people have been arrested, prosecuted, and similar convicted at disproportionate rates.”
Biden’s concern about the ancillary penalties associated with marijuana convictions and the racially disproportionate impact of the war on weed are welcome. So is his willingness to use his plenary clemency powers to address those problems. But nearly all low-level marijuana cases are prosecuted under state law, and his pardons will have no impact on those. Biden urged governors to “pardon simple state marijuana possession offenses,” which would have a much broader effect but depends on their discretion.
To put the impact of Biden’s pardon in perspective, about 400,000 people are currently incarcerated for drug offenses in the United States, including about 67,000 federal prisoners. During the last two decades, police typically made between 1.5 million and 1.9 million drug arrests every year. In recent years, marijuana arrests have accounted for more than a third of the total, and the vast majority of those cases (92 percent in 2019) involved possession rather than cultivation or trafficking.
Although Biden said “we should decriminalize marijuana,” he does not have the authority to do that on his own. Despite his pardon, simple marijuana possession is still punishable by a $1,000 fine and up to a year in jail under the Controlled Substances Act. Growing or selling marijuana are still federal felonies, which creates an untenable conflict with state laws that allow medical or recreational use. Cannabis consumers who own guns likewise are still subject to stiff prison sentences—a policy the Biden administration is defending in court.
Biden, who has long opposed efforts to repeal the federal marijuana prohibition, made it clear today that he does not favor eliminating criminal penalties for growing or selling pot. His pardon pronouncement says “no language herein shall be construed to pardon any person for any other offense, including possession of other controlled substances, whether committed prior, subsequent, or contemporaneous to the pardoned offense of simple possession of marijuana.”
The moral logic of Biden’s distinction between simple possession and other marijuana offenses is hard to follow. He says using marijuana should not be treated as a crime. If so, how can? helping people use marijuana justify sending anyone to prison? And why should people convicted of assisting cannabis consumption be saddled with felony records for the rest of their lives?
Biden did say “it makes no sense” to “classify marijuana at the same level as heroin.” Both drugs are included in Schedule I of the Controlled Substances Act, a category supposedly reserved for substances with a high abuse potential that have no accepted medical use and cannot be used safely even under a doctor’s supervision. Biden noted that even fentanyl, black-market versions of which are implicated in two-thirds of drug-related deaths, is less strictly regulated than marijuana, because the federal government recognizes that it has legitimate medical applications.
Biden said he has asked Secretary of Health and Human Services Xavier Becerra and Attorney General Merrick Garland to “initiate the process of reviewing how marijuana is scheduled under federal law.” That administrative process is apt to take a while, and its consequences are uncertain.
Removing marijuana from Schedule I would require changing the criteria that the Drug Enforcement Administration (DEA) historically has applied in determining whether marijuana has a “currently accepted medical use.” The DEA has long demanded the sort of evidence that would be required to win FDA approval for a new drug. The DEA’s critics, meanwhile, have long complained that keeping marijuana in Schedule I makes it harder to conduct the research necessary to satisfy that requirement.
Rescheduling marijuana would eliminate the research barriers that are unique to Schedule I. But by itself, it would not make cannabis available as a prescription drug, which would require FDA approval of a specific application. So far, the FDA has approved synthetic THC as an anti-nausea medication and cannabidiol as a treatment for epilepsy. Except for the latter, it has never approved a cannabis-derived medicine.
“Too many lives have been upended because of our failed approach to marijuana,” Biden said today. “It’s time that we right these wrongs.” Given the narrow reach of the policies he just announced, which leave marijuana prohibition untouched, do not allow even medical use, and keep marijuana growers and distributors in prison, his reforms represent only a modest step in that direction.