Biden’s Marijuana pardons welcome, but federal drug laws must meet reality
Biden Should Just Legalize Marijuana.
President Joe Biden demonstrated the proper use of presidential clemency power a few weeks ago, when he pardoned thousands of people who had been convicted of various nonviolent marijuana violations on federal land.It follows another mass pardon in 2022 that canceled thousands of federal cases in states where medical or recreational pot use has been legalized, including Florida. Neither set of pardons can repair the lives disrupted because of prosecutions that should never have taken place, but they are a big step in the right direction.
Neither Biden nor Congress have arrived at the final, and necessary, destination: Getting rid of federal penalties for pot possession and use, and revising official but antiquated classifications of marijuana’s therapeutic value.
Biden correctly cited a need to address racial disparities in drug prosecution and sentencing, and that’s an important point. Criminal laws in theory cover all Americans equally, but in practice, laws punishing possession or use of small amounts of cannabis have been enforced over the years disproportionately against Black people. Unequal enforcement can render a colorblind law racist and an instrument of injustice. Add to that the growing number of states that have ratified medical or recreational marijuana-use laws, and the chances of wide variation in the likelihood of being prosecuted are magnified.
Clemency is a tool that, when wielded properly, can remediate flaws in the administration of criminal law. But it doesn’t erase the need to address those flaws.
The 2022 pardons also covered thousands convicted of marijuana use and possession. Last week’s action included many who fell through the cracks, such as those convicted of “attempted possession.”
Yet we still have federal laws and regulations that impose sanctions out of proportion to the alleged harm. Marijuana remains a Schedule I drug under the Controlled Substances Act, a more serious classification than that applied to fentanyl, which few dispute is a far more harmful substance if misused. Possession and use of marijuana in the District of Columbia or on federal land can still result in prison time, at least theoretically.
The law’s defenders note that few, if any, people now go to prison under federal law for possessing small amounts of cannabis. But felony convictions bring lifelong consequences even to people who never see the inside of a cell. A conviction makes it extremely difficult or impossible for a person to rent an apartment, qualify for a home loan, go to college, get a professional license, get a high-paying job or even coach a child’s soccer team.
The thousands of people covered by Biden’s pardon will still have to apply for a certificate that they can present to banks, landlords and others to move beyond their marginalized position to become fully productive contributors to society. This is what they ought to have the right to do, and what all of us should want them to do. Reducing the number of unnecessarily marginalized people makes all of society safer and stronger.
Even for more serious crimes — petty theft, for example — the criminal justice system stumbles over the false binary of felony and lifelong consequences, or unenforceability. But there are obvious options in between, with consequences more rationally tailored to curb unwanted yet nonviolent behavior. People convicted of infractions or misdemeanors can be meaningfully sanctioned without facing a life sentence of second-class citizenship.
That’s how California deals with possession of dangerous drugs like heroin. An arrest gets the user into the criminal justice system or, as an important alternative, the public health system. The crime is a misdemeanor, a more reasonable and proportionate level of enforcement against behavior that as a society we want to stop, but that is not so critically dangerous that we need to marginalize the offender for life.
For marijuana, though, many have recognized that even misdemeanor or infraction prosecution is inappropriate. Simple possession of marijuana is no longer a crime in half the states; in fact, it’s no longer a crime in more than half the states when possession for medical use is included.
Florida could be poised to join them. Last week, the group backing legalization of recreational marijuana announced that they had more than enough signatures to get the issue on the 2024 ballot. Polling indicates that around two-thirds of Floridians would approve it, if Florida Republicans don’t manage to block it from getting on the ballot.
Changing federal law quickly would undercut their efforts to do just that, in Florida and other states.. Making marijuana subject to the same kinds of regulations that govern possession of alcoholic beverages is the best path forward.
As part of last year’s pardons, Biden called for a review of marijuana’s controlled status. It’s high time for Congress to do its job and rewrite the law. Until then, proportional justice will require the president to periodically pardon people who should never have been prosecuted in the first place.
