By Abraham Kruger
On October 6, 2022, President Biden declared the federal marijuana policy of the last century a “failed approach.”[i] Biden then announced that he will pardon people with federal marijuana convictions and begin a review of how the drug is scheduled, ushering in a new era of federal marijuana policy.[ii] The move, which came 33 days before the 2022 midterms, is likely to be very popular based on polling that indicates record-breaking support for legalizing marijuana.[iii] According to a 2021 Gallup poll, more than two in three Americans support the legalization of recreational marijuana. Despite federal classification in Schedule I of the Controlled Substances Act, which is reserved for drugs deemed to have no accepted medical use,[iv] medical marijuana is legal in 39 states and the District of Columbia. Meanwhile, 31 states have fully or partially decriminalized marijuana, and recreational use is legal in 21 states and the District of Columbia. It is likely that Biden’s announcement will bring the federal government’s marijuana policy more in line with the majority of states.
In his announcement, Biden reflected on the legacy of federal marijuana policy, stating that the criminalization of marijuana has upended too many lives by imposing “needless barriers to employment, housing, and educational opportunities.”[v] Biden further emphasized that the criminalization of marijuana has targeted racial minorities at a strikingly disproportionate rate. While Black and white people consume marijuana at roughly the same rates, Black people are 3.64 times more likely to be arrested for possession.[vi] This reflects a long history of racial disparities that stem from the very criminalization of marijuana itself.
Psychoactive cannabis products had long been used in medications in the United States. However, amidst the Mexican Revolution in the early 20th century, Mexicans began moving to the United States, bringing with them the more visible and perceptible act of smoking marijuana.[vii] Racially motivated panic over the arrival of these immigrants spurred many states to ban marijuana. In the 1930s, Harry J. Anslinger, head of the Federal Bureau of Narcotics, led a campaign against marijuana, publicly associating its use with racial minorities, which he called “degenerate races,” and promoting unscientific claims as to the danger of the drug. Either reflecting public sentiment or perhaps creating it, the propaganda film Reefer Madness was released in 1936. It depicted marijuana as an incredibly dangerous and addictive drug that would lead users to a life of crime. A year later, in 1937, Anslinger successfully lobbied Congress to pass the Marihuana Tax Act, which effectively banned marijuana nationwide. This federal ban was declared unconstitutional in 1969 because it required self-incrimination in violation of the Fifth Amendment.[viii] But, shortly thereafter, in 1970, amidst active civil rights and anti-war movements, President Nixon signed the Controlled Substances Act into law, which reinstated the ban. John Ehrlichman, Nixon’s domestic policy chief, is alleged to have later stated: “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. . . . We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”[ix] This account of the political strategy behind the Controlled Substances Act and the War on Drugs is further corroborated by the posthumously released diary of Nixon’s White House Chief of Staff, Harry Robbins Haldeman, in which Haldeman states that “the whole problem is really the blacks,” and that “[t]he key is to devise a system that recognizes this while not appearing to.”[x]
Biden’s new policies begin the process of righting this injustice. First, Biden directed the Attorney General to develop a process for the pardon of approximately 6,500 people who have been convicted of simple possession of marijuana under federal law.[xi] The pardon extends to thousands more who were convicted under the laws of the District of Columbia. These pardons apply to those convicted of simple possession of marijuana only, and do not extend to “other offenses related to marijuana or other controlled substances.” Biden has directed that these pardons be issued “as soon as reasonably practicable.”
Second, Biden urged all state governors to pardon those convicted of simple marijuana possession.[xii] Unfortunately, the majority of citizens convicted of simple marijuana possession were convicted and imprisoned at the state level.[xiii] Thus, in order to truly set things right, governors and state pardon boards would need to issue pardons in their respective states. In many states, this is very unlikely to happen.[xiv]
Third, Biden directed the Secretary of Health and Human Services and the Attorney General to review how marijuana is scheduled under the Controlled Substances Act.[xv] Marijuana is currently in Schedule I, which is the most restrictive category of drugs, containing drugs such as LSD and heroin. As Biden implies in his statement, this classification does not make sense given the fact that the much more dangerous drugs driving the opioid and overdose epidemics, fentanyl and methamphetamine, are classified in the less restrictive Schedule II. If marijuana is removed from the drug scheduling framework altogether it would open up the federal banking system to businesses that sell, grow, test, and distribute marijuana.[xvi] This is something that the marijuana industry desperately needs because, for the time being, it can only operate in cash, which poses issues with tax auditing, obtaining loans, and theft. Meanwhile, attempts at gaining access to the federal banking system through statutes like the SAFE Banking Act have stalled in Congress. Biden’s announcement now represents the quickest path to allowing the marijuana industry access to the federal banking system.
Further, if marijuana is removed from the scheduling framework, U.S. based marijuana companies could list on U.S. stock markets, bringing in billions of dollars in investment and jumpstarting the industry.[xvii] As it stands now, without access to the financial mechanisms most nascent industries can use to fuel growth, many marijuana businesses will continue to struggle. This also means that only businesses with extensive private capital can afford to invest in the industry thereby cutting out those without access to capital, not coincidentally the exact same group most targeted by the criminalization of marijuana.[xviii] If the goal is to fully right the wrongs of the criminalization of marijuana, we must ensure that those who suffered most during criminalization get the full benefits of legalization.
In sum, Biden’s announcement is a step in the right direction, but it does not and cannot unilaterally solve most of the systemic problems with the country’s past marijuana policy, which Biden correctly identified in his announcement.[xix] It is indeed “time that we right these wrongs,” but in doing so we must not stop at the surface level. We must use a holistic approach that takes into consideration the context of marijuana criminalization and the ramifications it has had for so many.
[viii] See generally Leary v. United States, 395 U.S. 6 (1969).