The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the White House announced two incremental steps towards loosening federal marijuana prohibition. President will pardon "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." In addition, he has directed the Attorney General and the Department of Health and Human Services to study whether marijuana should be removed from the list of Schedule I drugs under the Controlled Substances Act (CSA). If marijuana is removed from Schedule I (a decision which the CSA leaves to the executive), penalties for possession and distribution would be reduced.
These are welcome steps. But, as Reason's Jacob Sullum explains, they are very limited. According to the White House's own data, there are currently zero inmates in federal prison incarcerated solely for marijuana possession. Some 6500 people have been convicted under federal marijuana possession charges over the last 30 years, plus a few thousand more in the District of Columbia (to which the president's pardon power also extends). But nearly all of these people have either already been released, or are currently serving time on other charges, as well. Admittedly, I have not yet seen clear data on the effect of this on DC prison inmates. Perhaps a few will actually be freed there.
The fact that the pardons may not actually free any current prison inmates, doesn't mean they will have no effect. Biden rightly notes that the pardons will still help some people who may "be denied employment, housing, or educational opportunities as a result" of their past convictions. A criminal record for marijuana possession might also hurt a parent's chances in a child custody dispute. The pardons can address these issues by effectively wiping these convictions off the books.
But, despite these caveats, the effect of the pardons is actually very limited. The vast majority of people incarcerated on marijuana charges are there for distribution rather than possession. But Biden's pardons deliberately exclude this much larger group, even though there is no good reason to do so, once you agree with him that marijuana use should not be banned. As Sullum puts it:
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's use of the pardon power here is far better than Donald Trump's use of that authority, which often focused on cronies and political allies. But being better than Trump in this sphere is a very low standard of comparison.
The ultimate impact of Biden's directive to study marijuana's scheduling remains to be seen. In principle, the executive might even be able to remove marijuana from CSA scheduling entirely. But that would conflict with Biden's long-stated position that marijuana sale and distribution should still be illegal. More likely, the administration will shift marijuana to a schedule category with less onerous penalties attached.
Given the widespread popularity of marijuana legalization, Biden could easily have gone further, with little political risk. Indeed, by doing so, he might even gain popularity at the margin. Almost 70% of Americans support legalization of marijuana, including overwhelming majorities of both Democrats and independents (Republicans are about evenly divided). A 2021 Pew Research poll that specifically asked about recreational use found 60% support (with only 31% opposed). Even a plurality of Republicans backed the idea (47% in favor, compared to 40% against).
This evidence suggests that Biden could easily have endorsed completely abolishing federal marijuana prohibition, at least when it comes to distribution to adults. In the process, he could have backed one of several draft bills to that effect currently before Congress, or proposed one of his own. Presidential backing might have given congressional Democrats stronger incentive to move on the issue.
Some hope that Biden's measures will generate momentum for the five state marijuana legalization initiatives on the ballot this year. That may happen. But, given the popularity of legalization, it is likely all five will pass regardless of what Biden does. Even in conservative Arkansas, a recent survey found 59% support for that state's legalization initiative, as compared to only 29% opposition. In most of the country, marijuana legalization is actually much more popular than President Biden! He probably has more to gain from embracing it than the reverse.
Despite these caveats, Biden's measures are a step in the right direction. And they do go farther than any previous president; though, with the exception of Trump, all previous modern presidents held office at a time when marijuana legalization was vastly less popular than it is today.
As always, the best should not be the enemy of the good. What Biden has done is good, and deserves some credit. But we should also keep in mind that he could easily do much better.