Biden Takes Welcome, but Very Limited, Steps Towards Marijuana Legalization

Given widespread public support for legalization, he could easily go further.

A cannabis plant.

Yesterday, the White House announced two incremental steps towards loosening federal marijuana prohibition. The 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.

Comments

[Bored Lawyer]

It's almost as if the Constitution assigned to Congress the task of making and unmaking laws. Who'da thunk it.

[Krayt]

And the people we elect to create those laws are very mildly pushed over long periods of time to respond to The People for slow changes, as opposed to the hyperventillation which got us here many decades ago.

How about all laws expire every 5, or hell 10, or hell 20 years unless explicitely renewed? Or if renewed or passed with a supermajority, then it is a normal, no-expire law.

Make these lazy cowards do their job and analyze the laws periodically and re-justify them.

[Bored Lawyer]

Not a bad idea, as ideas go. IIRC some states have something like that.

[SimonP]

It's almost as if we not so long ago were talking about how the pardon power is so unlimited that it might well embrace presidential self-pardons, pocket pardons and pre-emptive pardons for criminal activity not yet undertaken.

[Bored Lawyer]

Shorter version of you: But Trump.

[Michael P]

Wow. This recognizes that removing marijuana from Schedule I is within Biden's remit, that it won't release anyone from prison, and that it is effectively (to borrow a phrase from Arnold Kling) subsidizing demand while restricting supply. And it still endorses such a blanket violation of the Take Care clause.

[David Nieporent]

And it still endorses such a blanket violation of the Take Care clause.

In what language is this English?

[LawTalkingGuy]

How can it violate the Take Care Clause to exercise a plenary power the same article grants to the president and to begin the administrative procedure of rescheduling the drug, an action the CSA specifically authorizes?

[Noscitur a sociis]

Notably, the order conspicuously applies only retroactively and does not direct federal law enforcement to stop enforcing the law. Which decision is certainly one that could be criticized, but not from the perspective of the Take Care clause.

[Michael P]

The pardon power was never understood to encompass pardons for an entire criminal charge, unmoored from individualized consideration.

But "unmoored" is a generally accurate description of the Biden administration.

[LawTalkingGuy]

Never understood by whom?

[SRG]

Not exactly:

All Confederate soldiers gain presidential pardons, Dec. 25, 1868

[David Nieporent]

And of course Carter offered a blanket amnesty to Vietnam-era draft dodgers.

[Armchair Lawyer]

“This recognizes that removing marijuana from Schedule I is within Biden’s remit”

Not exactly. The Controlled Substance Act doesn’t specify which drugs fall under which schedule. Rather, it specifies the properties of the drugs that need to be assessed. Basically, it’s as follows.

1. Is the drug potentially abused? Is there high potential for that abuse (ie addiction). 2. Are there any medical purposes for that drug?

That’s it. Not “how bad is the drug?”. But “Can it be abused (how much)” and “Is there a medical purpose”. If there’s abuse potential, and no medical purpose, it goes to schedule 1. If there’s a medical purpose for the drug, but it can be severely abused, schedule 2. If it just has “some” abuse potential, but no medial purpose…still schedule 1.

Marijuana has the problem that there’s no FDA approved medical use. That’s not surprising…Marijuana isn’t a chemical. It’s a plant/plant extract. It’s a mixture of stuff of varying concentrations, depending on strain, preparation, and more. If you’re the FDA, you’re going to approve a set drug (chemical compound) at a set concentration for a set indication. You’re not going to approve a plant extract that could be anywhere from 0.5% to 34% THC, with a host of other chemicals at various concentrations.

So, Biden redirected the FDA and DEA to “look at marijuana again”. The FDA is going to say “This isn’t a drug for any medical indication, it’s a mixture of stuff all over the place, we couldn’t possibly approve it” And without a medical indication, you’re not going to get under schedule 1.

Or…Biden could overrule the FDA on a matter of medicine and pharmacy. That’s a whole different problem, for various reasons.

[Commenter_XY]

AL, let me ask you this. Should cannabis be removed from Schedule 2? Should it be legal?

My answers are yes, and yes.

[Michael P]

Legal for what? If it's on a CSA schedule, it's either entirely illegal (Schedule I) or requires a prescription.

[Armchair Lawyer]

1. Schedule 1, not 2.

2. That's your opinion.

From a societal and political (especially international) standpoint, in general the answer is no.

One of the biggest issues it the Single Convention on Narcotic Drugs. This is an international treaty, to which the US is a signatory. And under it, Marijuana is illegal. If you care about international treaties and all the niceties that go along with international treaties, this is a concern. If you think one can ignore the international treaties that you want to, but others should adhere to the ones you think are important....well, that's a good way to undermine the international and agreements.

So, you're fine with the US violating its treaties to legalize marijuana. And other countries, when it's their turn can ignore them in regards to global warming limits or nuclear weapons or war crimes or....

[John F. Carr]

The USA would be following the precedent of Canada, which legalized marijuana.

According to Wikipedia some have argued that nothing in the treaty explicitly requires possession to be penalized. Making simple possession not a crime under federal law might be consistent with the treaty. It really depends on what foreign diplomats think.

[Armchair Lawyer]

Decriminalization of possession and legalization are not the same thing.

Let's put this in an international context. The US has a long history of seizing drug shipments in international waters. But you want to legalize marijuana. What happens when the British navy seizes a US flagged container ship in international waters carrying several million dollars worth of marijuana?

According to US law, that cargo is now entirely legal, and the British are unjust in seizing it. The company that owns the ship should demand it back, with compensation, and the US should back them up. But under international treaty, the shipment is illegal....

What does the US do?

[John F. Carr]

What does British law have to say about jurisdiction? Under U.S. law the Maritime Drug Law Enforcement Act gives the U.S. jurisdiction on the high seas over U.S. vessels and stateless vessels but not over foreign flagged vessels absent consent of the flag country. The Coast Guard could not seize a British ship for carrying drugs on the high seas.

[Zarniwoop]

Party like it’s 1812!

(I jest, since high seas jurisdiction over nationally-flagged vessels is … complicated).

I mean, reframe the Q. What if the Saudi Arabian navy stops a US flagged container ship on the high seas because it has a container with $1M of Budweiser in it?

OK, unrealisitic. One container's worth of Budweiser is way less than $1M.

[Noscitur a sociis]

The executive has the power the un-schedule marijuana, but that would make it legal to manufacture or distribute as well as to possess. Making possession legal while criminalizing distribution would require an act of Congress.

[MatthewSlyfield]

The executive could also re-schedule, for example, moving it from schedule 1 to schedule 2, which would open some things up, but not have the same impact as unscheduling it completely.

[Commenter_XY]

AL, you raise an aspect I had not considered; namely, treaties ratified by the US Senate. It is a fair point.

That raises a question, though. Was the treaty you mention (Single Convention on Narcotic Drugs) ratified by the Senate? And does Single Convention on Narcotic Drugs explicitly make possession or even legalization of cannabis a treaty violation? Maybe, maybe not. I come down on the 'not' side, mostly from my libertarian orientation.

[Armchair Lawyer]

“Was the treaty you mention (Single Convention on Narcotic Drugs) ratified by the Senate?” Yes. Ratified in 1967

“And does Single Convention on Narcotic Drugs explicitly make possession or even legalization of cannabis a treaty violation? ”

-That’s more complicated, on several levels. I’d recommend reading the full treaty. I will note that cannabis is explicitly mentioned, by name. However, in general, it is viewed that possession for the purposes of trafficking / selling cannabis is illegal, except for a couple categories (Hemp, the official government crop_

https://en.wikipedia.org/wiki/Single_Convention_on_Narcotic_Drugs#Possession_for_personal_use

[John F. Carr]

Is it even possible for a treaty by itself to create criminal penalties? We have the Migratory Bird Treaty Act providing the criminal law based on the promises the United States made by signing the Migratory Bird Treaty.

[shawn_dude]

How is this different than tobacco?

[windycityattorney]

But there are whole plant extract drugs derived from cannabis approved by the FDA. GW PHARMA made one for pediatric epilepsy its called Epidolex.

There is also the issue of 100% synthetic THC having been approved for decades (marinol) but is admittedly a separate issue since its synthetic.

[Armchair Lawyer]

Epidolex is cannabidiol. It doesn't contain any THC. It contains cannabidiol at a set concentration, as well as measured concentrations of several inactive ingredients (Sucralose, Sesame seed oil, etc.)

https://www.rxlist.com/epidiolex-drug.htm#:~:text=EPIDIOLEX%20(cannabidiol)%20oral%20solution%20is,%2C%20strawberry%20flavor%2C%20and%20sucralose.

Again. Set compound. Set concentration. Set ingredient list.

Don't get me wrong. You can derive many, many, drugs from natural sources. But ultimately they are isolated, purified, and sold as the pure compound with set levels of inactive ingredients and binders. You buy Aspirin. Aspirin is FDA approved. You don't buy "ground willow bark" of an unknown concentration, mixed with "other stuff".

[Sarcastr0]

Do you consider yourself a libertarian?

[MatthewSlyfield]

"You don’t buy “ground willow bark” of an unknown concentration, mixed with “other stuff”"

Most people don't, but you actually can if you wanted to.

https://www.herbco.com/p-950-white-willow-bark-cs-wild-crafted.aspx?gclid=EAIaIQobChMIxq3liOXR-gIV2BfUAR3AbAdQEAAYASAAEgI0G_D_BwE

[MonitorsMost]

A very small step but I won’t look an incrementalist horse in the mouth.

[Rev. Arthur L. Kirkland]

Better Americans should ignore the clingers and legalize marijuana.

[Bored Lawyer]

I know people who have been hooked on marijuana. It's a very damaging drug, and in a decade or two we will bitterly regret legalizing it.
That said, the way to do this is for the president to go to Congress and propose legalizing it at the federal level, at least up to a certain amount.

[Krychek_2]

It's my understanding that the Senate Republicans are the roadblock to legalization.

[MoreCurious]

It's my understanding that the Senate Republicans are the roadblock to everything.

[Joe_dallas]

Republics are a near absolute road block preventing the progressives from repeatedly doing something stupid

such as the extremely inflationary inflation reduction act, aka the destroy the electric grid with something that wont work act

[Krychek_2]

None of which has nothing to do with marijuana legalization.

[Joe_dallas]

I was replying to morecurious
perhaps you should read a little more carefully

[Krychek_2]

I got that. It’s still a thread hijack and two wrongs don’t make a right.

[SRG]

I assume because Big Tobacco haven't yet finalised their processes for producing MJ cigarettes with consistent levels of active ingredients. Once they do, we can expect the GOP to fall in line with legalisation - while adding amendments which favour companies which are capable of producing consistent levels of active ingredients...

[David Welker]

Bored Lawyer:

It is not a very damaging drug. I don't think it is something a person should use on a daily basis (like many people do), but you are just factually wrong.

Ice cream is also a bad thing to consume on a daily basis. And yet, we do not regulate individual ice cream consumption and nor should we. The same is true of alcohol or tobacco.

I suspect that you are an older rather younger person, just based on your lack of information on this particular subject.

[Rev. Arthur L. Kirkland]

" I know people who have been hooked on marijuana. '

I know people who have been ravaged by alcohol (and not just the alcoholics).

I know people whose minds have been pickled by superstition.

I know people whose lives have been wrecked by ample, empty calories.

I know people whose lives have been twisted by bigotry.

I know people who lives have been severely diminished by inadequate education.

The argument that marijuana should be outlawed while Hardee's, faith healers, the Klan, Bud Light, backwater religious schools, Big Gulps, the Republican Party in southern states, Jack Daniel's, and homeschooling by dumbasses should be lawful is unpersuasive.

[windycityattorney]

"I know people who have been hooked on marijuana. It’s a very damaging drug, and in a decade or two we will bitterly regret legalizing it."

As if marijuana wasn't the easiest drug to access by anybody for the last 40years despite it being illegal? In other words, anybody who wanted to use marijuana could find it. Most people flatly and without regret flouted the law and thought its prohibition pointless. I fail to see how your prediction will ever come to fruition. Regardless, the Congress delegated to the executive branch scheduling decisions for all illegal drugs. Cannabis is at present and since 1970 has been wrongfully scheduled.

It has accepted medical uses and it simply is not dangerous enough to justify schedule 1 criteria. The congressional committee composed to determine its scheduling recommended decriminalizing it. Previous scheduling petitions resulted in administrative law judges recommending it be put in a lower schedule - decisions which were summarily rejected by the then administrators of the DEA.

All the bills in Congress to increase 'research' into cannabis - which the GOP keeps using as a stalling tactic to loosen cannabis criminal laws - would become redundant if its moved to schedule 4 or 5 or de-scheduled.

Lastly, prohibition of a widely popular and easily accessible herb is one of the federal government's largest failures. It is a waste of federal resources to prohibit it and there are so many states with either legalization or medical cannabis laws that its continued federal prohibition is untenable, unworkable and an even bigger waste of time and money.

[Armchair Lawyer]

"As if marijuana wasn’t the easiest drug to access by anybody for the last 40years "
Alcohol, Tobacco, Advil...all easier to access.

"It has accepted medical use"
-There are no FDA approved medical uses.

"If it's moved to schedule 4 or 5"
Unlikely. Ritalin is currently schedule 2. Marijuana is simply too addictive (psychologically or physically) to be considered below schedule 2 or 3, even if you leave off the lack of medical use.

[Commenter_XY]

Marijuana is simply too addictive (psychologically or physically) to be considered below schedule 2 or 3, even if you leave off the lack of medical use.

I question the physical addiction to cannabis. I mean, withdrawal from cannabis is nothing remotely like quitting heroin or cocaine, or alcohol for that matter. Just not the same.

[Armchair Lawyer]

For more information, please read.

https://drugabuse.com/blog/marijuana-addiction/

[Zarniwoop]

Did you even read the page you linked to?

there are several misconceptions about its use. While some argue that there is no “safe dosage” of marijuana, no deaths due to a marijuana overdose have ever been substantiated

The most common debate centers around whether is marijuana addictive. Although pot use does not spark a physical addiction, withdrawal symptoms from the substance can definitely be physical

OK, I'm not sure what they're even trying to say with the last clause... it's a blatant contradiction.

[Armchair Lawyer]

"Overdose," safe dose and death are not synonymous.

These mean different things. You're conflating them.

[Zarniwoop]

I provided two direct quotes from the page you linked to. Nothing more.

Exactly what am I "conflating"? FFS man, set aside your biases and respond like even an armchair lawyer.

[Toranth]

THC-laced candies have been linked to a small number of cases of serious harm by overdose, including death ('some'), in children that eat them and overdose (small body mass).

That's not "marijuanna", but it is also the sort of substance that is often included in these discussions.

That page is weird, you're right about that. I looked at the FDA and CDC pages instead.

[Jason Cavanaugh]

I'll go ahead and say it:

I don't believe you.

As far as I am aware, THC has *never* caused a death by overdose.

[Sarcastr0]

'linked to'

[Armchair Lawyer]

Never?

https://fredericksburg.com/news/local/crime-and-courts/police-investigating-death-of-spotsylvania-boy-with-high-levels-of-thc-in-his-system/article_273c1262-cc3e-5bed-b725-910e2533b575.html#:~:text=His%20body%20was%20taken%20to,that%20produces%20the%20high%20sensation.

[Toranth]

According to the FDA, THC edibles are at risk of causing death for an overdose. According to the CDC, in 2021, there was one pediatric case (“under_15”) of THC poisoning resulting in death (T40.711A) (SUDORS/WONDER).

Now, you can take it up with the CDC and their recording of deaths – it has had problems – but until you can show that they’re wrong, I’m going to trust their data over your “awareness” of all US deaths.

And no, Sarcastro, I did not say "linked to", so you can stop putting words in my mouth.

[Davedave]

I just looked this up. There has been one - _one_ - recorded case where death was ascribed to THC. In fact, though, that case was recorded as such by a coroner, not the CDC - they merely state what the _recorded_ cause of death was.

It is overwhelmingly likely that the coroner was mistaken, given that there is zero scientific basis for the opinion. There's a reason we don't base science on anecdata.

[Jason Cavanaugh]

Given the number of people who deliberately or accidentally consume THC in all of its various forms, I'll say the quiet part that everyone except you two have figured out for themselves:

You're idiots to think there's a danger.

AL - Your link describes a child who died with large amounts of THC in their system. Notably missing is a cause of death.

Toranth - Get back to me when there's a scientific study actually demonstrating the potential for THC to cause death by overdose. Again, given the number of people who consume it, only an idiot would act (or base conclusions) on an alleged single data point that was not scientifically proven whatsoever. Hell, a rational person wouldn't even base a conclusion on a single data point that WAS scientifically gathered.

You aren't 'trusting' the CDC. You're placing your faith in a single, random coroner's report unsupported by scientific evidence.

It should also be noted that you are a liar. Sarcastr0 quoted you accurately - here's a more complete version (Hint: It was the first sentence you typed above, fool.)

"THC-laced candies have been linked to a small number of cases"

"linked to"

Liar.

[Toranth]

JC, there have been a number of studies (a very large number, in fact) about the risks of marijuanna, cannabinoids, and THC. There is an estimate for LD50 in humans - and you can find it on the FDA's website. It is plausible that a small child could consume enough to reach the lethal range.
Your denial of that fact is pretty revealing.

Similarly, the CDC accepts death reports that meet specific standards. The original report is, in fact, done by a local coroner. If you have evidence that the coroner, in a case you never heard of and have identifying information for, was wrong or lying, you are welcome to present it.
In the meantime, you are just yet another ignorant person without the education, knowledge, or even case-specific facts to dispute the professionals who is standing up and screaming that your preferred outcome must be right.
The anti-vaxxer have more data on their side than you do! You really want to cling to your position that's even less supported than theirs?

And yes, it looks like I did leave a 'linked to' in the start of my post when I removed it else, specifically because ignorant people like to claim those words are somehow disproof in and of themselves.
So, I apologize to you, Sarcastro. I did screw up and leave you the handle that you immediately seized, like others always do.

[Jason Cavanaugh]

1) Risks associated with marijuana usage is not the same thing as claiming it has the potential to cause death by overdose.

Notably missing from that claim are any of the studies you suggest exist on the matter.

I don’t need to refute the *one* coroner claim that a death was caused by marijuana overdose, because there are millions upon millions of people who have used marijuana and THC compounds to extremes who have not died. Are you aware that almost everything has some kind of LD50 value? Are you further aware that even if the alleged death was caused by marijuana, that one is more likely to die from an overdose of water than marijuana or THC?

Your exception, regardless of who signed the piece of paper, does not prove the rule. The anti-vaxxers actually have MORE information to support their claims of negative side effects and/or death than anyone does in complaining about THC or marijuana at large.

You have ONE alleged data point, out of millions of users. You’re welcome to base your opinion on that single data point, unverified by any science whatsoever.

A reasonable person would not.

[Toranth]

JFC.
Ok, let's start with this: Stop diverting a discussion of THC poisoning with blather about marijuana. I explicitly pointed out that THC products are not marijuana, but you keep coming back to the same irrelevant argument.

THC can be fatal. This is not a fact that anyone with even a portion of a brain will dispute. I didn't cite any studies on the topic for the same reason I don't cite studies on the lethality of salt. Looking up the estimate values on the FDA's public repository is enough - for people that are not accusing the FDA as being in on some sort of conspiracy.
But since you insist that easily discoverable data doesn't exist, I'll give some quick citations I pulled from the CDC's page on the topic:
Lowe (1946)
Joachimoglu (1965)
Phillips et al. (1971)
Thompson et al. (1971)
Friedman et al. (1995)
Sidney et al. (1997)
If you really feel like reading the papers (ha ha, you won't even look at the WONDER data) you can go to the CDC's THC safety page and read it (and these cites) yourself.

Next, THC poisoning is a well known thing. The symptoms are well documented, and can be found by anyone capable of using an internet search engine. According to the same US government data, in 2021, there were thousands of cases of THC poisoning requiring hospitalization. Hundreds of those were severe enough to have the patient put into the ICU.
Are you going to claim that all of those thousands of attending doctors and nursers were lying? Do you think there is a grand conspiracy amongst the medical community to make THC look bad?

Or are you accepting the fact that thousands of people needed medical treatment for THC poisoning, and that hundreds of them were so close to dying that they needed an ICU bed, but then still deny that even one person - almost certainly a small child! - could have overdosed on THC?

And, again, the fact that millions of people (almost entirely adults) can use a product without dying does not mean it cannot be fatal. Water is used by billions, in large quantities, daily! Yet overdosing resulting in hyperhydration can be fatal - several people die from it every year. Incidentally, it's usually children - the small body mass makes it easier to overdose.
According to you, a "reasonable person" would conclude this is impossible. But, like you, they'd be very wrong - and the medical science to prove it is well understood. Rare events still happen, you know.

Just like THC poisoning. You can deny the data all you want, but it just makes you an ignorant science denier. If you want to disagree, rather than just put your fingers in your ears and scream "na-na-na", then yes you do need to refute the data.

The fallacy of disbelief was quantified because of exactly your behavior.

[Toranth]

And just to make it clear, all I've discussed so far is THC overdosing.
I have not before mentioned the 20 or so cases of THC-caused deaths through heart and lung problems that occur every year, and have for at least the past 10 years (all the data I reviewed).

That's a lot of coroners in on your anti-marijuana conspiracy.

[Zarniwoop]

Yep. Alcohol withdrawal can and does kill people. Alcohol withdrawal is far more dangerous from a physiological perspective than opiate withdrawal. (Benzodiazepines like Valium are also pretty dangerous after prolonged use, also more than opiates.)

In comparison, cannabis withdrawal is pretty much a non-issue. Folks might not like quitting, but it doesn't kill.

[Armchair Lawyer]

Withdrawal is not addiction nor abuse.

[Zarniwoop]

yes, they are different words to describe different concepts.

And your point is?

Is your logical capability still stuck in a high school DARE class circa 1990?

[Armchair Lawyer]

No…these are very different terms for very different things. And conflating them is inaccurate for what is going on and why items are regulated.

[Zarniwoop]

yeeeaaas ... we agree that words are words. So, where's the alleged "conflation"?

You sound like you're at the "pound on the table!" part of your argument that has no basis in law, and no basis in facts.

Sad.

[Armchair Lawyer]

You're mixing a lot of terms inaccurately, to present a case of a "safe" product.

Let's address them in order.

1. Marijuana is addictive. Addiction doesn't mean withdrawal. Marijuana use can lead to the development of problem use, known as a marijuana use disorder, which takes the form of addiction in severe cases. Addiction is when the person cannot stop using the drug even though it interferes with many aspects of his or her life.

2. Marijuana has a number of reported effects when people stop taking it. People who use marijuana frequently often report irritability, mood and sleep difficulties, decreased appetite, cravings, restlessness, and/or various forms of physical discomfort that peak within the first week after quitting and last up to 2 weeks. Marijuana dependence occurs when the brain adapts to large amounts of the drug by reducing production of and sensitivity to its own endocannabinoid neurotransmitters.

3. Marijuana (THC) does have a lethal dose. It's high. But by no means impossible. Benno Hartung et al. (2014) report that the lethal half dose (LD50) for THC in humans is estimated to be around 30 mg/kg. This means that approximately 2 grams (.07 ounces) of pure THC has a 50% chance of killing a 150 pound man. That's about 20 of the high concentration THC gummies. (Just for fun, the LD50 for alcohol is much higher than 30 mg/kg).

[Davedave]

"Benno Hartung et al. (2014) report[...]"

That paper has been thoroughly refuted. Even the authors only claimed they could 'assume' cannabis was responsible having ruled out all other possible causes of death. It was rapidly pointed out that they hadn't ruled out the most likely possible causes. It's junk science that was rapidly flushed down the pan of history.

It's worth pointing out that the levels they consider lethal are in fact common doses for heavy consumers of marijuana, and while I wouldn't recommend living that way, it's plain that people do live normal lifespans while ingesting similar quantities daily.

[windycityattorney]

"No FDA approved uses"

Epidolex... a cannabis plant derived medicine, FDA approved to my knowledge, to treat pediatric epilepsy.

Also, tobacco and alcohol are not 'drugs' listed in the controlled substances act. My comment was referring to them. Among those drugs, cannabis is by far the easiest to procure and the most widely used. Even during cocaine's heyday in the 80s.

[Armchair Lawyer]

Marijuana is not cannabidiol

[windycityattorney]

Bullshit. Cannabis is hemp. Hemp is cannabis. The fact that hemp produces more CBD and trace amounts of THC doesn't change the fact. You can breed cannabis with very low THC and high CBD. Up until a few yrs ago, ALL cannabis (hemp or not) was the same to the feds. The difference is a legal definition not a botanical one. (cannabis with >.03%THC by volume is hemp). Rest assured, hemp is still cannabis.

[SRG]

“It has accepted medical use”
There are no FDA approved medical uses.

The latter statement does not disprove the former.

[Armchair Lawyer]

Since the DEA is relying on the judgement of the FDA in regards to medical uses for scheduling....

[MatthewSlyfield]

"even if you leave off the lack of medical use."
The research needed to get anything THC based through FDA approval (since that seems to be your standard for accepted medical use) is impossible as long as it's on schedule 1.

It would have to be moved to schedule 2 before any significant research on medical uses could even be conducted.

[Commenter_XY]

Wow....Bored Lawyer. Tell me more.

What do you see happening where we will bitterly regret legalizing? I am genuinely curious to understand your perspective. It does not violate halakah to use cannabis, unless you want to base dina d'malchuta dina as your reasoning.

Really...I am interested in your perspective here.

[Commenter_XY]

Oh, and Bored Lawyer....Chag Semeach Sukkot. 🙂

[Rev. Arthur L. Kirkland]

There are two sides to almost everything. Here is the 'marijuana must be outlawed' argument.

[Bored Lawyer]

It has nothing to do with halakha. In 10 to 20 years, there will be many people, intelligent productive people, whose lives will have been ruined by marijuana use. That is when we will regret it.

[Zarniwoop]

That said, the way to do this is for the president to go to Congress and propose legalizing it at the federal level, at least up to a certain amount.

Sounds like the 21st Amd approach: leave it up to the states.

I'd be pretty fine with that.

Huhn, I wonder what "party that claims they believe in state's rights" would also object because THOSE DAMN LIB-Y-RUL HIPPIES WANT TO DESTROY AMERICA!!?!1!?

[Don Nico]

But still, mere use of marijuana is sufficient cause for someone to be denied a security.
That policy is within the authority of POTUS to change. But no attention to that as it won't buy votes next month.
Color me cyncial

[LawTalkingGuy]

I see that the concept of “buying votes” has moved on from describing the enactment of various welfare policies to describing the enactment of popular policies in general.

If a politician enacts a popular policy or announces his intent to enact a popular policy close to an election in order to get votes, that’s a good thing. What’s the alternative? Never engage in good governance through enacting popular policies because that’s “vote buying” and that’s bad?

[Don Nico]

"that’s a good thing. "
But, LTG, he did NOT change the policy to a popularly favored one. He pardoned an undermined number of people for appearances sake.
Had he changed the policy and especially how it impacts national security employees I would have been far less cynical.

[Commenter_XY]

Don Nico, I accept your argument at face value. It is a cynical and desperate attempt to gain midterm election votes.

Let me ask you this: Should cannabis be legalized?

[bernard11]

It may have been motivated by the midterms elections.

OTOH, I don't see why it is either cynical or desperate. Should political official not do things which are popular and beneficial?

[Don Nico]

It is cynical when it could of been done as pat of the perpetual review by every administration of national security practices.
But "motivated by the midterms elections" is exactly my reason for cynicism

[Don Nico]

I don't see why not as soon as there are efinitive tests of when someone is driving of flying a plane or operation heavy machinery "under the influence."

[Bob from Ohio]

"Color me cyncial"

He gets a good headline but lets no one out of prison and affects only 6500 people, many from decades ago who aren't going to go all Willie Horton on him.

Its a good political move. My compliments.

[MatthewSlyfield]

"But still, mere use of marijuana is sufficient cause for someone to be denied a security."

I presume you intended "denied a security clearance".

This is not due to any direct effect of marijuana use, but because it's illegal and because, in general, being involved in illegal things creates an elevated risk of blackmail.

[Don Nico]

This is what I meant Matthew.
I don't deny the rationale that you state, which is why it is entirely under the authority of POTUS to end the practice.

[BillyG]

You're right. Trump didn't use his pardon power to uselessly pardon prisoners. Instead he used his presidential powers to shorten prison sentences.

Trump: 3100
Biden: 0

https://www.washingtonpost.com/national-security/3100-inmates-to-be-released-as-trump-administration-implements-criminal-justice-reform/2019/07/19/7ed0daf6-a9a4-11e9-a3a6-ab670962db05_story.html

[David Nieporent]

"Used his presidential powers" is an odd way of saying "Did what the law required."

[shawn_dude]

Because to prisoners, being pardoned and allowed to leave prison is "useless?"

[ReaderY]

Differentiating between providers and users of a substance (or service) posited as harmful is entirely rational, especially for something also posited as addictive or habit-forming. . Users can be thought of as comparatively innocent victims who get dragged in semi-involuntarily, whereas providers make a conscious choice to make a living and profession out of others’ harm.

If Professor Somin agreed with the claim of harm, it’s hard to understand why he wouldn’t see the rationality of treating providers more severely than users. He might still disagree with doing so, of course.

[Zarniwoop]

While I disagree with the use of "victims" and "providers" (would you use the same terms for bar patrons and bartenders?) ... I gotta agree that differentiating simple possession and cultivation/distribution is at least ... rational.

But mainly because a lot of cultivation/distribution is also the easiest thing to pin on violent groups (see: Mexican cartels), so that's where there's a potential line from "mostly harmless" to "could be bad guys".

By analogy, "simple possession" of ethanol wasn't egregiously antisocial in 1930, but the folks involved in Al Capone's ethanol distribution mafia were ... often bad people.

Is "Federal prison for anyone who hands a 12oz beer to a friend in 1930 (distribution)" good policy? Is "Federal prison for anyone who hands a joint to a friend (distribution)" good policy? Those are different Qs.

[ReaderY]

Well, this country still has many dry counties and towns, many (probably most) of which prohibit the sale but not the possession of alcohol. There are even more jurisdictions that permit some alcohol sales, but don’t allow bars. These are jurisdictions where the rationale behind alcohol prohibition still prevails, at least to some extent.

In these jurisdictions, the distinction between “victims” and “providers” might also still be relevant.

[David Welker]

It is interesting to me that Biden clings to keeping marijuana illegal.

Overall, I do not see much opposition to marijuana legalization among younger people. Disagreement seems to come from the older generation, who may be clinging to their past mistakes rather than admitting that, in many respects, the war on drugs (which has had benefits), may have had more costs than benefits.

This is especially true with marijuana. Something which, although far from healthy, isn’t exactly that big of a deal.

Overall, I think marijuana use is a somewhat bad idea for an individual. It creates addiction and dependence. But I think government policies make this even worse. For example, expensive taxes makes people who are addicted to marijuana much poorer for no real benefit. All the while creating an opening for a large black market. Policies to limit licenses to sell or cultivate marijuana to certain groups has been ineffective at creating positive social change, but has created much higher prices for consumers, including members of the groups who are supposed to benefit. (This could be easily predicted. Sellers are nearly always a much smaller group than buyers; so favoring sellers over buyers as restrictive licensing policies does is going to tend to do net social damage.)

What should happen is that marijuana should be legalized and it should be sold at ordinary stores. At the same time, people should be aware that there are downsides to marijuana consumption and it is probably something that one should avoid consuming on a daily basis. But that said, it should be up to each person as an individual to make this decision.

A lot of the law is stuck in the past and it changes at a somewhat agonizingly slow pace.

This is why I am skeptical of policies such as the filibuster in the Senate. As much as some people fear change, I think we should also worry about not being able to adapt rapidly enough. I think the evidence is clear. While marijuana isn’t something someone should probably not consume on a daily, the same is true of alcohol, ice cream, tobacco, and many other substances. It just doesn’t matter that much, one way or another. Despite that being fairly clear, our law lags way behind the evidence.

[Joe_dallas]

legalization of marijuana may be a good thing and I do think the war on drugs has back fired.

That being said, the question remains is whether marijuana is a gateway drug as claimed. Though I would prefer drug counsellors who have actual experience address the issue.

[windycityattorney]

Except drug counselors can't see past their own paychecks to make a reasonable objective assessment. Some of the staunchest opponents to loosening cannabis laws are drug counselors. Because when all use/possession is illegal, there are more arrests and many people given the choice of 'drug treatment' or 'jail' will very obviously choose treatment. So in this sense prohibition is a de facto subsidy to drug treatment counselors. Which makes them biased. Cannabis being the most popular/widely used substance it generated the most arrests and hence referrals from the criminal justice system to the counselors. Total scam except in the rarest of cases.

[Zarniwoop]

I do believe alcohol is the "most popular/widely used substance" in the US.

But that just highlights the impact that "legal" versus "illegal" has on the whole system, and why the scam relies on the disconnect between "harm" and "legality".

[windycityattorney]

Yes, it would not surprise you then that "adverse legal consequences' is a symptom of 'abuse.' So you got arrested for pot? That means you are therefore abusing it.

And again, by most popular... i am comparing it to other illegal recreational drugs. Like those found in schedule 1. Alcohol is not listed in those schedules.

[Zarniwoop]

I think we're in agreement here ...

[shawn_dude]

I'm not convinced the "war on drugs" has backfired. There are a lot of non-white Americans (likely Democrat votes) in Southern states, like Florida, who have lost their right to vote because of a joint or two. The "war on drugs" had some very real positives for GOP politicians looking to get and stay elected.

[Zarniwoop]

Well, since Florida is no longer allowed to prosecute non-whites for using the wrong water fountain, they had to come up with something else to make sure the "wrong people" can't vote.

[Davedave]

"the question remains is whether marijuana is a gateway drug as claimed."

No, it really doesn't. The concept never had any scientific backing, and has been thoroughly debunked/disproven over the years. It is definitely untrue, at least as a generalisation. (It is always possible some individual may, as a result of their own personal psychology or upbringing - say, a mormon - find that overcoming the first barrier to intoxicants pushes over all subsequent barriers too. But no reason to think that couldn't happen with caffeine or alcohol too. )

Current science says there's a strong possibility the effect is the other way around, and widely available cannabis _reduces_ the chances people will ever use other drugs - but there is no overwhelming evidence because it's hard to study.

[David Nieporent]

It is interesting to me that Biden clings to keeping marijuana illegal.

He's old.

[yoyo]

Is there a precedent for a mass pardon of people convicted of such and such crime like this? Seems like an abuse of the pardon power to me.

[Zarniwoop]

Yes, there are mass pardon precedents. Far larger mass pardon precedents.

https://www.history.com/this-day-in-history/president-carter-pardons-draft-dodgers

[yoyo]

Thanks for the reference!! Still seems quite bogus. What Carter did was if anything more bogus.

[ReaderY]

What about Lincoln and Johnson’s mass pardons of Confederates?

Washington’s mass pardon of Whiskey Rebellion participants?

[Commenter_XY]

You nailed it, ReaderY

[Michael P]

Different, because those were based on what the individuals actually did rather than what their plea bargains stipulated. Many of these convictions were negotiated for possession in lieu of more serious charges that the prosecutors probably could have won. Changing the rules afterwards undermines that discretion.

[David Nieporent]

Many of these convictions were negotiated for possession in lieu of more serious charges that the prosecutors probably could have won.

None of these convictions were negotiated for possession in lieu of more serious charges that the prosecutors probably could have won.

[Rev. Arthur L. Kirkland]

"What about Lincoln and Johnson’s mass pardons of Confederates?
Washington’s mass pardon of Whiskey Rebellion participants?"

Look at ReaderY, bringing his research and informed commentary and history and reality-based points to a Volokh Conspiracy debate.

[Zarniwoop]

Curious, why do you think the general concept of a mass pardon is "quite bogus"? It might or might not be politically wise, but then again the Constitutional text seems to make the pardon power virtually unlimited.

For a deeper dive into mass pardons, consider the broader history:

George Washington’s and John Adams’s pardoning participants in armed insurrections in Pennsylvania in the 1790s. In the nineteenth century, James Buchanan, Benjamin Harrison, and Grover Cleveland issued pardons to Mormon insurrectionists and polygamists, and Abraham Lincoln and Andrew Johnson pardoned Confederates both during and after the Civil War. Most recently, Dodds considers Gerald Ford’s clemency and Jimmy Carter’s amnesty of Vietnam War resisters.

http://cup.columbia.edu/book/mass-pardons-in-america/9780231200790

[Toranth]

At least in my state, the courts rules that pardons must be done individually, one by one.

This was in response to a similar mass-pardon by the governor.

[Zarniwoop]

Obviously totally legit if that's what your state constitution requires.

And equally obviously, such a requirement is not a part of the Federal pardon power.

[Toranth]

The Virginia constitution does not explicitly permit or forbid mass pardons and the phrasing is almost identical to the US Constitution.

The President shall ... have Power to grant Reprieves and Pardons for Offences against the United States

The Governor shall have power ... to grant reprieves and pardons after conviction

My only point was that disallowing mass pardons is neither new, nor unreasonable, even though the history of the Federal power clearly tends towards allowing them.

[nekit2010g]

I happen to support this, but the Democrats threw a tantrum when Trump exercised his pardon power.

The pardon power is unchecked and unreviewable. It's that simple.

[Zarniwoop]

Let’s suppose there is a Good party (G) and a Bad party (B).

Someone shoots a (G) member of Congress on the House floor (in DC, Federal territory). President (B), who had absolutely no prior knowledge of the plan to shoot Congressman (G), pardons the shooter. – Is the pardon Constitutional? – Is the pardon an abuse of the pardon power?

Scenario 2:

President (B) says in advance that he will pardon anyone who shoots a (G) member of Congress. Congressperson (G) is shot on the floor of the House. President (B), who had no prior knowledge of the specific plan to shoot Congressman (G), pardons the shooter. – Is the pardon Constitutional? – Is the pardon an abuse of the pardon power?

Scenario 3:
Candidate for President (B) says that if elected, he will pardon anyone with a Federal conviction for shooting a (G) Congressperson. He's elected, and pardons people who did shoot (G) Congresspersons.
– Is the pardon Constitutional? – Is the pardon an abuse of the pardon power?

Under current law, yes the pardon power is unchecked and unreviewable. But I submit that “constitutional” is not that same as “abusive”.

I don’t want a pardon power where President (B) can routinely pardon people who attack people from party (G). That’s Constitutional … and also so extremely abusive that it would bring down our Republic.

[shawn_dude]

Because pardoning your co-conspirators is what good guys do!

[Zarniwoop]

I hear the good guys also promise to pardon their violent mob of supporters if re-elected!

But hey, if it's constitutional it can't be abusive, amirite?

[Davedave]

"The pardon power is unchecked and unreviewable. It’s that simple."

No. The POTUS has the power to do things which are treason, if we accept that argument - but actually is prevented because exercising the power in such ways is a federal crime carrying the death penalty. There are in fact many checks and balances, because an unrestricted pardon power conflicts with many other firmly established rights and restrictions.

[David Nieporent]

See above where I mentioned how you are very confident about legal claims that have no legal merit. The pardon power is unchecked and unreviewable. If he issued a pardon as part of some treasonous scheme, he could be prosecuted for treason, but that would not undo the pardon itself.

[Noscitur a sociis]

The response to this (and marijuana legalization efforts generally) does suggest that Republicans are badly overestimating public support for marijuana criminalization, which seems like something Democrats could exploit. Of course, the fact that Biden has instead chosen a gesture as pointless as this would suggest that Democrats may be under a similar misimpression.

[nekit2010g]

The Democrats haven't exactly been stalwart defenders of drug rights either.

[shawn_dude]

The list of states with legal, recreational marijuana is almost entirely blue or lean blue states. Democrats routinely vote for things like needle exchange programs and safe injection sites.

[nekit2010g]

Needle exchange programs are stupid and dangerous, and is how you end up with San Francisco. Democrats don't believe in drug rights because they believe in bodily autonomy (other than killing babies). They do so because legalization disproportionately benefits blacks.

[Rev. Arthur L. Kirkland]

This is why the Volokh Conspirators don't get to argue that their blog doesn't attract a remarkable concentration of bigots.

Carry on, clingers. And racists. And Republicans.

[Noscitur a sociis]

Are there any examples within, say, the last 5 years of a federal marijuana possession conviction having any nontrivial collateral consequences? My intuition is that it's fairly unlikely, but I'm certainly interested in learning about it if I'm wrong.

[shawn_dude]

If there is, it would likely be related to specific types of employment, likely those related to hazardous or top secret work. When I was on active duty, I only had a secret clearance and I was required to mostly abstain from alcohol for a specific three month period where my job duties included some sensitive tasks. I’m fairly sure pot would be viewed worse than alcohol given that it’s still illegal. I don't know if these situations would be easy to find using basic Google searches.

[Zarniwoop]

My mother-in-law manages Federally-subsidized senior housing in a rural, farming-centric location in a midwest state.

She cannot rent to anyone with *any* cannabis-related conviction.

She feels bad that she has to turn down old folks because of ancient "possessed a joint" citations on their record. It happens. People in their 70s now were young in 1970.

Now, I don't know that she has had to personally turn down someone with a Federal misdemeanonor for simple possession of a joint. But if someone applied to live in her old folk's home had one, she would be required to deny their application.

Being 70+ and not being able to live in the only source of senior housing in that small midwest town ... it's really, really hard on them.

[Bob from Ohio]

All [or nearly all] the 6500 convictions were reductions due to pleas. Nobody was being federally prosecuted for simple possession.

The pardon power should be used more often so its fine but these 6500 were also dealers.

[windycityattorney]

So you didn't read the actual OP? Anybody caught on federal lands with cannabis could get cited - including national parks, monuments, VA facilities, etc...

The feds typically didn't get involved in routine cannabis prosecutions unless you met a threshold (say that triggered a 5yr or 10yr mandatory minimum sentence) OR the location of the offense granted the feds exclusive jurisdiction. Like the places named above. Or perhaps all of Washington D.C.

[Bob from Ohio]

I stand corrected. Its not dealers and pleas.

Its still only 6500 people in 30 years over scores of US district courts, including DC. So, I still don't care, pardon away.

[Noscitur a sociis]

Tell me you've never practiced federal criminal law without telling me you've never practiced federal criminal law.

Head over to the federal courthouse the next time a magistrate judge is holding CVB court. At least half the docket is going to be people who got caught with a joint in a national park or on a military base or the like. On the other hand, I am personally aware of zero times that a more serious federal charge was reduced to marijuana possession. Some practitioners are saying that they've seen it (i.e. a person allowed to plead to simple possession even though they had enough that it was clearly intended for distriution) occasionally in border districts—but of course those defendants almost certainly wouldn't be affected anyway, since this pardon doesn't apply to offenders who were in the US illegally.

[Zarniwoop]

Yep. Frankly, when I was clerking, the US Attys in my district (a midwest state) didn't normally care about less than a tractor-trailer load of pot. The cases on the docket were all about methamphetamine or cocaine, with bonus points for felon in possession of a gun. And no one pleaded those down to simple possession of cannabis.

[LawTalkingGuy]

When I was an intern at a USAO the AUSAs let us observe USPIS package interdiction, including the execution of the warrant. They all groaned/laughed when the searched package contained marijuana. Even when it was technically being trafficked they didn’t care and those cases were never going to be prosecuted (at least not by them), unless USPIS picked up something good after a controlled delivery.

[Zarniwoop]

I chuckled at the "groaned/laughed" part. Your Art. II side of the story seems to match up pretty well with my Art. III experience ...

[LawTalkingGuy]

“Tell me you’ve never practiced federal criminal law without telling me you’ve never practiced federal criminal law.”

He’s going to take that as a compliment, you know.

[Bob from Ohio]

"At least half the docket is going to be people who got caught with a joint in a national park or on a military base or the like."

If you say so. I just read an interesting US Sentencing Commission report from 2014 that said in fiscal year 2013 there were 125 convictions for base or park possession. Must be a light docket if all US districts only handle 250 such cases.

Also said that 90% of total convictions were from the Southern District of Arizona and 85-90% were non-citizens. So, not subject to the pardon.

[MachineGunBodine]

Too bad this doesn't affect the hundreds of people imprisoned by VP Harris.

[shawn_dude]

For marijuana in a state with legal, recreational marijuana?! In a state that passed Prop 64 in 2016 that lets people with prior convictions expunge them from their records? While she was Attorney General of California?

That Kamala Harris?

[Michael P]

Yes, this Kamala Harris: https://www.huffpost.com/entry/tulsi-gabbard-kamala-harris-criminal-justice-record_n_5d424340e4b0aca3411841fb

[John F. Carr]

I am not so sure about collateral consequences. Pardon is not expungement. There is still a prior conviction. The punishment for that conviction has been removed.

[nekit2010g]

https://www.cnn.com/2022/10/06/us/murder-convictions-vacated-rap-lyrics-reaj/index.html

This is what the ACLU is about now. Protecting black criminals.

[Zarniwoop]

That's some pretty weak-sauce trolling. Try harder.

[nekit2010g]

Why do you support these commies?

[Zarniwoop]

I said "try harder". The "commies" bit is so very 1950s. Have some self-respect, man.

[Davedave]

The 'commies' stuff is hilarious, given the Trump traitors are in fact the closest thing to Soviet-style commies left in the world.

[Michael P]

You're right, that's unfair. Today's ACLU is also about denying people their legal and contractual rights: https://www.bostonglobe.com/2022/06/01/metro/ri-aclu-activist-groups-ask-judge-make-john-doe-trooper-sue-under-his-real-name/

And defending government censorship: https://libertyunyielding.com/2021/10/17/aclu-defends-censorship-in-virginia/

[Zarniwoop]

Is that all you've got?

Link 1: The ACLU asking that a state trooper who got "incoherently drunk", didn't show up for work, got fired, and tries to sue as "John Doe" has to use his real name in a lawsuit? [maybe try a non-paywalled news source]

Link 2: breathless "OMG they ACLU bad!" um, I can't actually even discern what are the legal issues are. The bleating appears to be "ACLU did nothing in county X, and instead did something in a different case in county Y." You know, some orgs have finite resources. And some cases are losers, no matter how loud the bleating. [maybe consider links to an actual legal sources, not this bool and sheet]

Weak, man, weak. Closing in on pathetic. It's almost like bleedover from the rest of the reason.com nutcase is happening in real time.

[Zarniwoop]

Though come to think of it, maybe you should bring the first case to Eugene V's attention, since he's interested in the pseudononymous litigation stuff.

[Michael P]

That's not all I've got, but Reason only allows two links per comment.

It's been a long time since ACLU was very active in defending anyone except abortionists and other serious criminals.

[Zarniwoop]

Then you're free to step up and defend the causes you value more than the ACLU does. Setting aside that you're factually wrong: finite resources are real, and priorities are valid.

Or you could keep bleating stuff that sounds like "I think the NY Dog Rescue org is horrible and evil! Because they don't also rescue felines in Montana. All pets matter!"

Sad. Weak. And even worse ... illogical.

[Michael P]

And you’re free to make the case that the ACLU defends civil liberties for anyone other than hardened criminals. You don’t. Fascinating.

[Jason Cavanaugh]

Most things that you say do not require any legitimate response.

For example, when you've failed to prove your point, a rebuttal is not necessary.

[The Margrave of Azilia]

Suppose tomorrow they bust someone for having marijuana in a national park. Of course the pardon won't benefit *that* person since pardons only apply retroactively.

And presumably President Biden, faithful as he is to his constitutional duty, can't on his own authority allow people to have weed in the national parks.

Is he just going to hand out proclamation after proclamation to pardon people who possessed marijuana since the previous proclamation? That sounds too much like suspending the operation of the laws, since it suggests an advance promise of pardon.

A slight suggestion - when granting amnesties in these circumstances, first make it take effect immediately if the offense is at least a year old. That's long enough to serve the ends of justice for a minor offense.

But for more recent offenses, make the pardon effective at a future date (April 20, 2023?), so as to make clear it's still a crime, no matter how leniently it will be treated, and they need to wait for Congress before acting like it's legal.

Submitted tentatively.

[Davedave]

Law enforcement officials always have a duty to consider whether any arrest or prosecution is in the public interest. They now know that it is not, in cases where mass pardons have been given out for the same 'offence'. Any such official attempting to arrest or prosecute on that basis is now aware that their action is unconstitutional and that they are not entitled to immunity for it. So, arrest someone for having a joint, end of police career, start of time in jail for abuse of police powers, false arrest, assault by beating, hate crimes, etc.

In other words, Biden's ruling _in effect_ decriminalises possession of small quantities.

[The Margrave of Azilia]

No, I don’t think so, there’s the “take care” clause and the power of Congress to make rules and regulations for the property of the U. S.

If similar conduct was pardoned in the past, that isn’t the cop’s business if they bust someone with weed today in a national park.

In practice, though, it may be as you say.

I am referring to the constitutional balance as if it were actually preserved as written.

[Sarcastr0]

I'm pretty sure the Founders were aware of soft power by the head of state being a thing that exists.

[The Margrave of Azilia]

The Founders knew about the executive attempting to suspend laws, or the operation of laws, without consent of the legislature. Hint: They didn’t like it. Maybe that’s why Biden didn’t do it?

If Congress has the power to ban dope use in national parks, then the executive has the duty to take care that such bans, once enacted, are enforced.

In practice, of course, what cop is going to be doing dope busts in the national parks after Biden’s proclamation? That’s not because of the Founders, but because of knowing in which direction the political winds are blowing.

Of course *Congress* should legalize weed in national parks – the more the merrier, as Smokey the Bear would say. But that’s Congress, not the President.

[Sarcastr0]

Certainly they were no doubt aware of officers of the executive looking the other way, as tacitly requested by their higher-ups. They were idealists, but also realists.
There are plenty of examples of the Founders themselves taking advantage of selective law enforcement no shortage of times. Check out how Washington got his land.

Your overly noble take on the Founders does them and our union a disservice by setting up a system that is impossible to live up to.

The fact that this is done via a formal process is a feature, not a bug.

[The Margrave of Azilia]

"Your overly noble take on the Founders does them and our union a disservice"

I must say that escalated quickly. I simply suggested that the cops would probably ignore the law but that legally they shouldn't.

[The Margrave of Azilia]

Anyway, you brought up the Founders, then when I replied by mentioning their familiarity with history of course you say I’m somehow insulting them. Are they as easily insulted as you are?

My initial focus was on what they actually wrote – the “take care” clause – and I don’t see how their subjective opinions and actions can negate what they actually wrote.

I didn’t even join the Punch-and-Judy Demopublican squabble because I said Biden wasn’t *trying* to authorize future violations, only to pardon past ones. Though of course the cops aren’t going to knock themselves out enforcing this law in today’s political climate.

[Davedave]

It's pretty well-established law that _all_ police actions must be proportionate to the offence. If the offence is considered so minor by society that the POTUS can mass-pardon cannabis users with widespread approval, then the police are wasting their time by enforcing laws against personal use (absent other aggravating factors).

If the police make an arrest over something they know is considered a waste of their and the courts' time, then obviously it's an abuse of police power and equally obviously there can be no QI.

One of the uniquely bizarre facets of the US setup is that one branch can make a law that another branch cannot over-rule, but where it can implement obstacles to enforcement of the law. This is an example. There is a law against smoking a joint, but any police action taken with regard to de minimis offending is unconstitutional.

Constitutional balances, just as you say.

[The Margrave of Azilia]

"considered so minor by society"

It sure is, and that belief should be embodied in law.

Meanwhile, if the cops legitimately pull someone over in a national park and find them with a joint, then the cops should write out a ticket. While I'm a fan of suing cops for *illegal* action, that seems to be the law and the President can't change it.

Given their budget, cops of course shouldn't proactively police minor offenses, but if the offender is right out there committing a violation, and the cops come across them (say they're not looking for dope, just doing their rounds, say, or pulling over a speeder), then give them a ticket.

One caveat is that if Congress hasn't appropriated enough money to enforce all the laws - not even to give tickets to offenders you come across - then in prudently spending the money, the cops should focus on more serious crimes. If they run out of money before they run out of minor crime, then that's Congress's de facto budgetary decision and they left the cops no choice.

[David Nieporent]

It’s pretty well-established law that _all_ police actions must be proportionate to the offence.

It is not. To be sure, use of force is sometimes assessed based on the nature of the offense, but police can arrest people for any offense.

If the police make an arrest over something they know is considered a waste of their and the courts’ time, then obviously it’s an abuse of police power and equally obviously there can be no QI.

You have this habit of very confidently making legal assertions ("Trump will be in jail." "Trump committed treason." etc.) that have no basis in actual law. That's not how QI works. At all.

There is a law against smoking a joint, but any police action taken with regard to de minimis offending is unconstitutional.

Yeah, no.

[Davedave]

Just saying 'no, no, no' doesn't persuade anyone, and you're going to get sand in your mouth given where your head is buried.

I mean, do you read any of the cases this blog highlights? You're completely lacking in clue.

[David Nieporent]

I mean, if someone asserts that their car is actually a perpetual motion machine and I say, "No; you don't understand physics," I don't think the burden is on me to persuade people by providing a physics education.

You made up some stuff about the law that had no basis in fact. so I said "no." Yes, I read the cases posted here, and lots more when I was in law school. You're the living embodiment of the Geico commercial, "That's not how this works. That's not how any of it works."

It is not unconstitutional to arrest people for de minimis violations. (I could point you to Atwater v. Lago Vista, for one counterexample.) Since it's not unconstitutional, QI is automatic.

[Davedave]

I have explained exactly why the situation is as I've stated. You've said nonono and attempted to ridicule me by comparing it to perpetual motion.

You haven't refuted it in any way. It is bizarre that you would deny that it's possible for legislation to be found to be unconstitutional. Obviously that happens all the time.

The fact is that _before_ the POTUS pardon there was an arguable case that prosecuting de minimis breaches of the law was a misuse of police time. There is now an unquestionable line in the sand, and we know it is in fact unconstitutional going forward. It really is that simple. The police are on notice, and QI therefore doesn't come into the picture: any police arresting someone for smoking a joint (under federal law) is now acting criminally.

[David Nieporent]

You haven’t refuted it in any way. It is bizarre that you would deny that it’s possible for legislation to be found to be unconstitutional. Obviously that happens all the time.

For legislation to be found unconstitutional, it has to, you know, violate the constitution. There's no non-frivolous argument that it violates the constitution to arrest someone for a "de minimis breach of the law." (Key words: "breach of the law.")

The fact is that _before_ the POTUS pardon there was an arguable case that prosecuting de minimis breaches of the law was a misuse of police time.

As a fiscal matter, absolutely. As a moral matter, sure. As a legal matter, you're just pulling this out of your ass.

There is now an unquestionable line in the sand, and we know it is in fact unconstitutional going forward. It really is that simple.

This is a bit, right? You're just trolling, right? It is 100% constitutional. Pardoning people for committing a crime, even en masse, does not make it "unconstitutional" to arrest people for it going forward. The law remains on the books and is enforceable.

The police are on notice, and QI therefore doesn’t come into the picture: any police arresting someone for smoking a joint (under federal law) is now acting criminally.

You're delusional and wrong. Or perhaps wrong and delusional. You've managed to get both halves of the QI analysis wrong. Hint: whether police are "on notice" that something is unconstitutional for QI purposes is assessed by looking at court decisions, and court decisions only — not by looking at actions of the executive branch.

[Yogis_dad]

Defining deviancy down.

[ReaderY]

A general note: whenever two contradictory policies are both constitutional, any compromise between them is also constitutional. This is so despite the fact that compromises of these baturw inevitably bring claims of being contradictory, illogical, and irrational.

Human beings often have difficulty with sudden change. Gradualism, moderation, and compromise are often necessary to institute change while preserving the peace and also preserving democratic legitimacy. It is important that idealogues among judges do not wreck this process with inappropriate claims that compromises are irrational and illegitimate.

Compromises are always legitimate products of democratic government. In a time of ideological tensions reaching a fever pitch where we seem to be careening towards civil war, it is particularly important to maintain the legitimacy of traditional methods of preserving the peace and maintaining order through compromise measures whereby nobody gets everything they want and everybody sees something they have a problem with.