The world woke up to an early Christmas present from American President Joe Biden as he announced a move to pardon all federal offences for simple cannabis possession, as well as calling on state governors to do the same. Interestingly, this executive order included a request for the Department of Health and the country’s Attorney General to review how cannabis is scheduled under federal law. This is particularly welcome as cannabis remains as a schedule 1 substance in the US, supposedly used for drugs with no recognised medical benefits and high potential for abuse.
Speaking to the racial injustices conducted under this egregious law, the White House put out the following statement:
“Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit. Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities. And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.”
A senior Biden official has estimated that more than 6,500 people with prior federal cannabis convictions could be affected by the pardon.
Thank you Biden – now it’s our turn
While only a first step towards true cannabis reform in the US, this move is incredibly welcome for a country that has increasingly become fragmented in its regulation of the drug. Considering America is the birthplace of the punitive, prohibitionist, stigmatising, racist and classist War on Drugs, it is invigorating for the movement to bear witness to such progress within our lifetimes.
The announcement has come at a politically critical moment, with American midterm elections happening at the start of November. With support for cannabis legalisation peaking at 69% of Americans this year, this move is widely expected to boost support for Democratic candidates in the House of Representatives. Democrat success in these elections could bring bigger and better cannabis news throughout the rest of Biden’s premiership.
This news also has international leverage; it is utterly condemnable to see countries like the UK, Brazil, the Philippines and more worldwide choose to double-down on prohibition as the primary model of control for the drug. With over 50 years of drug policy failure, trillions spent in its criminalisation, thousands of dead and many more incarcerated, the cracks in the global wall of prohibition are widening. Through these gaps, a brighter future seeps in.
British drug policy campaigners have already criticised the draconian positions the current government are taking on drug policy, with the latest news being a call to move cannabis from a class B to a class A substance. News of Biden’s decision will spread far and wide, and surely be used as evidence of changing times.
Announcement not without criticisms
While we are yet to see the impact that this executive order will have for those currently criminalised for their cannabis consumption, some experts have weighed in on this development, noting that the executive order has not gone as far as it could, with some arguing not far at all. TalkingDrugs spoke with several prominent figures within the American drug policy reform sphere on their thoughts on the reform.
Morgan Godvin, harm reductionist and drug policy researcher, provided some nuanced understanding of the pardoning process: “As there is no federal expungement, a pardon is the only way to get relief from the collateral consequences that come with a conviction. It is an imperfect tool as it does not, necessarily, erase the court records.”
For those living in more punitive states, a pardon could be a tool to restore their right to vote, or diminish the impact of their criminal convictions on their job prospects. However, a pardon is just that: a pardon for a crime that remains on your criminal record, just with its carceral consequences removed. It is not the same as an expungement, where the record is entirely removed from your record. However, her belief was that “Biden did the best he could do within the system. The system that requires a presidential pardon for relief, as inscribed to our constitution, is the issue.”
Tamar Todd, former legal director of the Drug Policy Alliance, also told TalkingDrugs about the limitations of the pardon: “There are probably very few, if any, people incarcerated for simple possession of cannabis under federal law. There are people incarcerated for more serious cannabis offenses or cannabis and other offenses. The overwhelming majority of cases involving simple possession are under state law and Biden's pardon does not apply to those cases.”
State-level resistance to Biden’s call is to be expected: Texas Governor Greg Abbott has stated that "Texas is not in the habit of taking criminal justice advice from the leader of the defund police party and […] a revolving door for violent criminals."
Todd hoped that Biden’s decision may encourage more states to continue expunging possession offences: “I feel like the move is meaningful because it is the President taking action, acknowledging outright that these cases reflect racial disparities, and saying they are wrong and should be undone. But the actual impact is quite limited,” she explained.
The estimated 6,500 people arrested for federal cannabis possession are believed to have been accumulated over the past 30 years, a tiny fraction of the number of people arrested for cannabis possession at the state level: according to FBI data, around 170,800 arrests were made in 2021 solely for cannabis possession at both federal and state level. The federal pardon would impact just under 4% of the arrests conducted last year.
The current director of Drug Policy Alliance, Kassandra Frederique, has criticised the pardon as the majority of the people will continue to have cannabis-related convictions on their records. Critically, undocumented migrants were excluded from the pardon, a significant omission as they tend to be overly criminalised through cannabis possession offences, with some facing deportation due to these charges. Frederique defines Biden’s decision as an “opening gesture”, hopefully paving the way for a more just and liberating future.
Why stop at cannabis?
Most across the drug policy movement can concur that the same broken logic that prohibited cannabis at the federal and state level applies to the vast majority of criminalised substances. Neuroscientist and author Carl Hart has openly urged Biden to legalise all drugs to eliminate the arrests for possession of any drug.
“No one should be jailed for using or possessing any of the drugs for which people are arrested. All drugs—or anything worth doing, for that matter—can produce both negative and positive effects. To act as if marijuana is unique in this regard is ignorant. This foolishness further stigmatizes users of drugs other than marijuana. We should, at the very least, decriminalize all drugs, just as the people of Oregon (and multiple countries) have done,” he told TalkingDrugs.
While the descheduling of cannabis could reduce criminal sentences for activities related to its, trade, Hart recommends going further. Exploring federal legalisation, and regulatory freedom to design different state-level implementations, makes sense for a country where around half of its citizens states can legally access cannabis.
“I would encourage Biden to push for the federal legalisation of cannabis. Two-thirds of the country back this. Joe Biden should also reallocate some of that $40 billion per year spent on the war on drugs to open drug-checking facilities. This would dramatically decrease drug-involved overdoses,” Hart explained.
There is hope for weary drug policy reformers that have criticised the punitive approach to drug control the US has taken for over 50 years. While Biden’s decision to pardon federal possession charges may be nominal, the potential de-scheduling of cannabis would allow for significant reform to happen across the country. This could also have international implications for countries that follow America’s position on drug policy. With cracks widening in the birthplace of the War on Drugs, more light is pouring in than ever before.
