On Oct. 6, President Joe Biden struck a blow against marijuana prohibition by announcing sweeping pardons for convicted marijuana users, and a new policy direction for cannabis. Not since Richard Nixon's "War on Drugs" speech in 1971 has a single presidential edict impacted federal drug prohibition in such a way.
Biden promised to pardon all those convicted of simple marijuana possession since 1992. He also called on governors to issue pardons for those convicted of marijuana possession at the state level (Oregon decriminalized marijuana possession in 1973).
The practical impact of the pardons is small. Zero defendants who were convicted of simple possession currently reside in federal prisons and only about 6,500 have federal convictions going back 30 years.
That said, housing, employment and public services could be easier to access for those who benefit from a pardon. Many employers in this country do an initial screen of job applicants with questions about criminal convictions, a practice that is illegal in Oregon. Millions across the country who need housing assistance have, for years, been barred by prior drug convictions, which has contributed to our current spike in numbers of the unhoused. Still, those evicted from their homes for drug use are barred from some housing assistance, such as Section 8 or housing vouchers, and the pardons will do nothing to change that.
More significantly, Biden called on his Attorney General and the Secretary of Health & Human Services to re-evaluate how we schedule cannabis. Marijuana is currently a Schedule 1 substance under the Drug Enforcement Administration's classification system. Schedule 1 drugs are deemed to be dangerous, have zero medicinal value and a high risk of addiction and abuse. Biden said this classification system, which puts cannabis on the same level as heroin and LSD, and puts it in a riskier classification than methamphetamine, "makes no sense."
If marijuana were to be removed from the Schedule entirely, marijuana markets could flourish. Banking restrictions in place due to prohibition have made doing business as a marijuana farmer, retailer or processor nearly impossible. Most large banks are insured by the federal government and refuse to bank cash for cannabis companies. Even cannabis-adjacent businesses, such as CPAs and attorneys, often find their accounts shuttered when the bank learns that they do business with marijuana clients. If marijuana were simply a Schedule 2 drug, however, federal restrictions would still exist, and the cannabis industry would continue to deal with a prickly federal/state conflict. In other words, much of the regulated industry will watch the outcome of the HHS and DEA evaluations carefully.
Central Oregon attorney Michael Hughes, who represents criminal defendants, many of whom are charged with drug offenses, made a YouTube video reacting to the Biden announcement, and called for far more radical change.
"Let's remember how we got to this point," Hughes said. "It was part of Richard Nixon's 'War on Drugs' and hippies and everyone else he doesn't like." Hughes then pointed out that Biden entered the Senate in 1973, and had many opportunities to intervene in the drug war, but instead spearheaded tough-on-crime legislation in the late 1980s and 1990s, which afterward resulted in lengthy prison sentences for thousands of those who used, dealt or grew marijuana.
"He should be pardoning people, he should be asking for forgiveness from the people whose lives he's ruined," Hughes added in his passionate speech.
Many Democratic governors tweeted reactions of approval to Biden's announcement. Meanwhile, Republicans, including governors such as Asa Hutchison of Arkansas, criticized Biden's announcement and accused the president of "pandering for votes."
There is a difference, however, between "pandering for votes" and governing in a way that the vast majority of constituents wish you to govern. According to a Pew Research poll in April 2021, more than 90% of American respondents believe marijuana should be legal for, at minimum, medical use, with 60% believing marijuana should be legal for recreational use. About 20 states have laws legalizing recreational use of cannabis, and another 17 or so allow it for medical reasons. In short, the verdict from the American people is clear: Legalize it.
Finally, the pain of the Drug War has not been felt equally. People of color are far more likely to be arrested for marijuana offenses than white people, despite similar offending rates for whites and Blacks. It's likely not a coincidence that the rate of homelessness for POC is similarly outsized. More institutional change will be needed to address the way the Drug War has tossed American citizens into jail—or the streets—for possessing a plant.
"Once we take it off the controlled substances Schedule," Hughes said, "we can get rid of all these lame excuses for locking people up."
