Last week, President Joe Biden announced some excellent news: The administration is granting pardons to individuals carrying federal convictions of simple possession of marijuana. Simple possession means an individual possessed a small amount reflecting personal use and is a misdemeanor punishable by a minimum fine of $1,000 and can include up to one year of imprisonment. Biden administration officials said around 6,500 individuals had been convicted of federal charges for simple possession since 1992.
Those individuals carrying this conviction on their record face potential barriers to engaging in healthy and productive behaviors, including finding employment, attending college, or securing a home or small business loan. So, the mass pardons will accomplish a great feat for these individuals, even if the overall scope and depth of the pardons are limited.
However, President Biden’s accompanying message and announcements could have much broader and deeper implications for America’s war on drugs and failed experiment with drug prohibition.
The vast majority of marijuana possession convictions in the United States are under state law. In his remarks, the president urged governors around the nation to take similar actions to pardon those convicted of simple possession under state laws.
“Just as no one should be in a federal prison solely due to the possession of marijuana,” President Biden said, “no one should be in a local jail or state prison for that reason, either.”
Further, Biden revealed that he would direct Secretary of Health and Human Services Xavier Becerra and Attorney General Merrick Garland to conduct a review of marijuana’s scheduling status under the Controlled Substances Act. This directive could easily become the most consequential portion of President Biden’s actions.
The Controlled Substances Act directs the Department of Health and Human Services, in concert with the Drug Enforcement Administration, to control the manufacture and distribution of substances believed to hold some potential for abuse. The federal agencies divide these substances into five schedules, supposedly representing those with the most purported potential for abuse to the least.
Marijuana, along with heroin and LSD, are Schedule 1 drugs, meaning the agencies believe they hold no medical value and a high potential for abuse. Those drugs are strictly prohibited in any form. Drugs in lower schedules may be available with medical prescriptions, as federal agencies have recognized some medical value for those substances. These include drugs like cocaine, methamphetamine, fentanyl, and hydrocodone in Schedule 2 and range down to anti-diarrheal medications in Schedule 5.
In other words, the federal government’s official position is that marijuana is more dangerous than fentanyl. The Centers for Disease Control and Prevention (CDC), meanwhile, reports that fentanyl is 50 times more powerful than heroin and kills 150 Americans every day.
Moreover, the federal government’s outdated position that marijuana holds no medical value is patently absurd. A recent meta-analysis of medical research published by the Journal of the American Medical Association found marijuana can effectively reduce pain, vomiting, and cellular spasticity. Even the National Institutes of Health, a federal agency, now recognizes the effectiveness of cannabinoids in treating various medical conditions. It’s tough to conclude that marijuana fits the Schedule 1 definition in light of these and other facts.
This, along with the president’s urging, means it is likely marijuana could be assigned to a different schedule or de-scheduled entirely due to the review process. That change would effectively end the national experiment with marijuana prohibition, which was based from the beginning on misrepresentations and a desire to create a new role for federal bureaucrats who had just lost their role as alcohol prohibitionists.
Multiple proposals are circulating in Congress to direct federal agencies to remove marijuana from scheduling under the Controlled Substance Act. However, that feat would not require an act of Congress. The executive branch has always held the authority to reschedule or de-schedule marijuana on its own, either through the agency review process or by simple executive order. Congress has gotten involved only because the executive branch has not pursued either action.
A variety of drug policy reform groups and advocates note that Biden’s steps and pardons are important progress. That said, the Biden administration could have gone further and descheduled marijuana itself, but his initiation of the review process signals a major turnaround for someone who was once a primary sponsor of the infamous 1994 crime bill that stiffened penalties for drug-related offenses and significantly escalated the war on drugs.
President Biden seemed to acknowledge this last week when he said, “Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs.”
Biden’s pardons and review process are very positive steps, but there is still much more to be done.