As I sit down to write this, it's been about two weeks since President Biden made his announcement pardoning federal cases of simple possession of marijuana. This was the first of three steps that the President laid out in his October 6th statement to “end this failed approach” towards federal cannabis law. You can read the full official statement here. While it’s difficult to gauge what long-term impact this might have on the future of federal cannabis laws, we can look at the real, short-term impact of each step - and do a little of our own wishful thinking.
Step One: Pardons
I only half-heard the President’s announcement the first time. My partner and I were sitting on the porch and I was barely paying attention to the video he was watching. That was until I heard “[...]a pardon of all prior Federal offenses of simple possession of marijuana”. My ears perked up. He’s doing what now? That sounds amazing! Can you replay that video for me?
It’s hard for me to not get overly excited when it comes to anything that I perceive as a progressive approach to cannabis, and this felt to me like a very public and progressive approach at a federal level that I haven’t seen in a long time. But I did have to take a moment to think about what this actually means.
Simple possession is basically exactly what it sounds like; you’re found to be in possession of a small amount of cannabis with no intention to sell or distribute, and with no connection to another crime. What makes a simple possession case federal is if it takes place on federal land, like a national park or even federally-funded public housing. In these instances, federal law supersedes state law. Essentially, if a park ranger busts you enjoying nature and a joint, you could be facing federal simple possession charges.
While there are very few - perhaps zero - people currently in federal prison for only cannabis possession, it’s estimated that 6,500 people convicted for simple possession since 1992 will be impacted by this pardon. The pardon will also affect those convictions prior to 1992, but the government doesn't have any data before then.
In addition, thousands of people in D.C. may also be impacted by the President’s announcement.
In a statement made by D.C. Mayor Muriel E. Bowser, she said that “President Biden’s pardons are especially important to our community” because “the Mayor of DC lacks the ability to grant pardons or commute sentences – a power that every state’s governor has.” Medical and recreational cannabis are both legal in the District of Columbia, but because they lack the autonomy of statehood, congress has the ability to interfere with their lawmaking at will. Recreational cannabis has been legal in D.C. since 2014, but they have been unable to set up a regulated adult-use market since 2015, as a result of a budget rider passed by Congress in 2015. Despite this, attorney general of D.C. Karl A. Racine said that after they legalized (up to two ounces!) arrests for cannabis possession dropped drastically, with 2,485 cannabis-related possession arrests in 2012, and only 22 in 2015.
Racine called the President’s announcement a “bold step forward for fairness and justice. We know the over-criminalization of marijuana has disproportionately impacted Black and brown communities — and these impacts have been particularly severe in the District”.
We don’t yet know the number of people who will be impacted by the D.C. pardons, but based on pre-legalization records, it’s likely to be in the thousands, which is no small deal.
While these pardons may remove some of the obstacles to housing and employment that President Biden mentioned in his statement and remove “civil disabilities” - such as restricted voting rights, the right to sit on a jury, or hold office - the pardons will not expunge their criminal record. This may still hurt employment opportunities in some cases, like restrictions for commercial truck drivers on what they are allowed to transport.
Step Two: The Governors
On October 6th, President Biden urged governors across the country to follow his lead, saying “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.” Now, I don’t think many of us would disagree with the President, and country-wide pardons would certainly make an impact. The President, however, has no authority to compel state governors to take any action regarding state level cannabis possession charges.
That being said, plenty of governors - and gubernatorial candidates - have made their own statements in response to the President’s announcement. It’s hard to say that there is any consensus amongst the governors and hopefuls, but many are echoing similar points. With the midterm elections upon us, many nominees announced their readiness to follow President Biden’s lead, declaring that they would pursue pardons and expungement for state level convictions.
Those in support of following the President’s lead appear, to me, to fall into two camps: governors who agree that no one should be in jail “simply because of marijuana possession” but are not going to be taking immediate steps, and those who have already implemented pathways to expungement. With medical cannabis legal in 37 states and adult-use legal in 19, many states took steps years ago to expunge cannabis possession convictions, and this was the perfect opportunity to further urge their colleagues to do the same.
For example, Illinois Governor JB Pritzker (D) retweeted the President’s announcement and thanked him for “taking this long overdue action”. In 2019, Gov. Pritzker signed the Illinois Cannabis regulation act that he says has pardoned over 800,000 low-level cannabis convictions. “We know too many black and brown people were disproportionately impacted by disparities in prosecution and conviction”, Gov. Pritzker said in a subsequent tweet. “I’m proud to have taken action and I hope to see other states follow our lead.”
Some governors, while they are not outright disagreeing with the President, say their hands are essentially tied as they don’t have the unilateral power to grant pardons. These states have a board that oversees the process of granting pardons, typically on a case-by-case basis. On the other hand, Governor of Nevada Steve Sisolak (D) pointed out that in 2020, the Nevada State Board of Pardons Commissioners passed a resolution to streamline the process of pardoning “thousands of persons who were convicted of minor marijuana offenses”.
There are, of course, those who stand in firm opposition to what the President has proposed, like Governor Brad Little (R) of Idaho. Gov. Little issued a statement on October 7th calling Biden’s cannabis announcement “basically pointless” and asserted that the President “wants to let people out of jail for drug offenses while he keeps the border open, allowing drug traffickers to pour into our country unchecked.” The Governor’s press release also points out that only the Commission of Pardons and Parole can issue pardons. Though the specific gripes Biden’s detractors have of his announcement vary, they seem to share the same “soft on crime” vibe.
With more and more states moving towards legalization, blanket pardons and expedited processes to expunge minor cannabis convictions nationwide, would have a huge impact on possibly millions of Americans and their families.
Step Three: Scheduling
We’ve made it to the third and final step in President Biden’s cannabis announcement: the expedited review of how cannabis is scheduled under federal law. Currently, cannabis is a Schedule I under the Controlled Substances Act (CSA), which is the same as LSD and heroin, just like the President said in his statement. Schedule I substances are defined as having no currently accepted medical use and a high potential for abuse.
President Biden has instructed the attorney general and Health and Human Services Secretary Xavier Becerra to start the process of reviewing the status of cannabis under federal law, but has basically zero input on the process from now on. It now falls into the hands of the FDA and the DEA, to decide if and how cannabis will be rescheduled. The FDA will review scientific and medical data in order to make a recommendation to the DEA. This recommendation is based on three factors: currently accepted medical use, addictive tendencies, and potential for abuse.
The hope of many advocates is that cannabis will be removed from the schedule entirely, not just rescheduled to a II or III. According to NORML’s website, descheduling cannabis is the best - one might say only - way to maintain the regulations that a majority of medical and adult-use states already have put in place, while also being a way to “rectify the state/federal conflict that currently exists over marijuana policy”. Rescheduling cannabis as a II or lower would leave it under FDA regulation like other perscription drugs.
This isn’t all some ellaborate scheme so I could tell you what a horrible idea I think this is. Like I said earlier, I am genuinely excited that it feels like something, anything, is happening at a federal level. I’m most curious to see what is going to happen with the schedule review, and very hopeful that more governors will be expunging records for more Americans with minor cannabis convictions. For example, from 2018 to 2020, 12,407 people were arrested for possession of cannabis in Kentucky. On October 13th, Kentucky Governor Andy Beshear (D) encouraged people convicted of simple marijuana possession to apply for pardons while they considered the next steps. Cannabis is not currently legal under Kentucky state law, but Gov. Beshear said in his statement on the 13th “that majority of Kentuckians demand medical cannabis be legalized”, and that he is committed to “keeping Kentuckians updated as we review the information and make plans to move forward.”
Moving forward. That’s what this is. It’s forward momentum, and 800,000 pardons in Illinois and 12,407 more possible in Kentucky is definitely not nothing.