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Biden offers mass pardon for those convicted of marijuana possession

The step marks a big move toward decriminalization.

A demonstrator waves a flag with marijuana leaves outside the White House during a 2016 protest calling for the legalization of marijuana. (Jose Luis Magana/AP)
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POUGHKEEPSIE, N.Y. — President Biden announced major steps toward decriminalizing marijuana possession Thursday, offering mass pardons for anyone convicted of a federal crime for simply possessing the drug, and urging governors to do the same.

He also directed his administration to expedite a review of whether marijuana should continue to be listed as a Schedule I substance, a classification reserved for the most dangerous drugs, including heroin, LSD and ecstasy.

“Too many lives have been upended because of our failed approach to marijuana,” Biden said in a video statement. “It’s time that we right these wrongs.” He added: “There are thousands of people who were convicted for marijuana possession who may be denied employment, housing or educational opportunities as a result.”

On Oct. 6, President Biden pardoned thousands of people convicted of a federal crime for simply possessing marijuana and urged governors to do the same. (Video: Julie Yoon/The Washington Post)

The review of marijuana’s classification, to be led by Health and Human Services Secretary Xavier Becerra and Attorney General Merrick Garland, could address a long-standing question over whether possession of marijuana — deemed legal in several states — should ultimately be decriminalized at the federal level.

While Biden did not fully endorse decriminalization, his announcement energized activists who have pushed for it.

“Many of the efforts taken and proposed by the President today are long overdue,” said Erik Altieri, executive director of NORML, which advocates legalization. Since 1965, he said, nearly 29 million Americans have been arrested for marijuana-related offenses that most Americans think should be legal.

Marijuana use among young people at record high

In describing the actions, Biden said they were a matter of common sense and fairness, declaring that “it makes no sense” for marijuana to be treated similarly to heroin under federal law. He also argued that the consequences of possessing the drug were often too harsh and long-lasting.

“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,” Biden said.

Still, Biden’s views on the subject have not always been so clear. In 2019, during the presidential campaign, Biden said marijuana might be a “gateway drug” leading to more serious abuse, a position out of step with the growing sentiment in his party for relaxing marijuana penalties.

While no one is currently serving time in federal prison solely for the crime of simple marijuana possession, officials said, about 6,500 people have such convictions on their records. Those convictions would be pardoned, and the offenders’ records cleared, under an administrative process to be developed by Garland.

Thousands of additional people who are residents of the District, which is subject to federal law, could also be pardoned, officials said. Others affected could be those arrested in places such as airports and federal parks, which are under federal law enforcement jurisdiction.

Biden’s actions, however, do not directly affect the vast majority of marijuana-related convictions, which are pursued under state law. Biden administration officials said the president would use his action to encourage state governors to offer mass pardons under their own authority.

Pot decriminalization push begins in Maryland

“Marijuana policy is a place where politics is finally catching up to the culture,” said Joel Payne, a Democratic strategist. “Marijuana decriminalization enjoys bipartisan support and it also happens to be really good policy. This will help President Biden not only with his base but also with other constituencies that are finding religion on the drug war.”

The move by the president continues the push to roll back some of the most far-reaching impacts of the war on drugs that began about a half-century ago, just as Biden was entering the U.S. Senate. America’s prison population, the world’s largest, had ballooned as a result of the push to crack down on drug use, and some Republicans and Democrats have since sought to shift away from punishment and focus instead on addiction treatment and other alternatives.

Biden, who once served as chair of the Senate Judiciary Committee and backed strict drug laws in the 1980s and ’90s, has previously faced criticism from some Democrats for taking a harder line on criminal justice than many in the party. But as president, he has moved away from those positions, taking executive actions to address police misconduct and pardon nonviolent offenders.

Polls suggest that a majority of Americans support Biden’s moves. A 2021 Pew Research Center Poll found that 67 percent of Americans favored releasing people from prison if they were being held solely for marijuana-related offenses. And 61 percent favored removing or expunging marijuana-related offenses from criminal records.

More broadly, the poll found that 57 percent of Americans support legalizing marijuana for medical and recreational use, and 31 percent favored it for medical use only.

And a November 2021 Gallup poll found that 68 percent said marijuana use should be legal, compared to 31 percent in 2000.

But Biden’s moves carry political risks, as Republicans have spent much of the past year accusing the president and Democrats of being soft on crime, linking rising incidents of violence and addiction to liberal policies.

“In the midst of a crime wave and on the brink of a recession, Joe Biden is giving blanket pardons to drug offenders — many of whom pled down from more serious charges,” Sen. Tom Cotton (R-Ark.) wrote on Twitter on Thursday. “This is a desperate attempt to distract from failed leadership.”

But many Republicans have relaxed their views on marijuana use as the culture has shifted, and some now say the issue should be left to the states.

Rep. Nancy Mace (R-S.C.), who has pushed legislation that would release prisoners arrested for simple possession and expunge the records of those convicted of nonviolent cannabis use, said she was highly supportive of Biden’s move and spoke with the White House on Thursday.

Mace added that the “devil is in the details” in getting other Republicans on board.

“There are nonviolent, simple possession users who are behind bars who shouldn’t be. And they’ve been punished in this very harmful, expensive war on a plant,” Mace said in an interview. “We’re seeing this wave of reform reach across the country, and it’s past time that Congress addresses it.”

Biden appeared to try to get ahead of Republican criticism in his videotaped remarks, arguing that the changes would not impact large-scale trafficking of narcotics or the crime of selling marijuana to children.

“Even as federal and local regulations of marijuana change, important limitations on trafficking, marketing and underage sales should stay in place,” he said.

And some Democrats have aggressively promoted the idea of decriminalizing marijuana, including Pennsylvania Senate candidate John Fetterman, who said he spoke to Biden about the issue last month. Fetterman tweeted Thursday that the move was a “massive step towards justice.”

While parts of Biden’s announcement will have immediate implications — particularly the decision to pardon federal offenses of marijuana possession — his order to Becerra and Garland to speed a review of how marijuana is “scheduled” is far more complicated and could take months, if not years, said Andrew Freedman, executive director of the Coalition for Cannabis Policy, Education and Regulation.

Freedman, who served as Colorado’s cannabis czar in 2014 when the state legalized marijuana, emphasized the ongoing tension between many states that have eased marijuana restrictions and the tough laws that are still on the books when it comes to the federal government.

“This is the start of an actual good national conversation of, ‘All right, there’s a reality that states have started to legalize this in different ways, and the federal government can no longer hold the position of this is prohibited,’ ” Freedman said.

Schedule I substances, which currently include marijuana, are those that have been deemed to be potentially extremely harmful and have no medicinal benefit. In his statement, Biden noted that marijuana has a higher classification than fentanyl and methamphetamine, which have spawned a deadly overdose and addiction epidemic nationally.

Rescheduling marijuana, however, would require the input of multiple agencies. First, HHS would need to make a finding that there’s a potential medical benefit to cannabis, Freedman said, and conclude that there is enough research to make such a finding.

That recommendation would then go to the Drug Enforcement Administration for review, and the DEA would need to come back with its own finding on how marijuana should be scheduled. From there, the attorney general would review and decide whether to initiate a rulemaking process to reschedule marijuana.

The process can typically take several years, Freedman said, but depending on how much pressure Biden applies to the agencies to expedite the review, the administration could complete the review within two years. But even reclassifying marijuana as a schedule 2 substance — meaning it could have some medicinal benefits but is still harmful — would not do much to change the on-the-ground reality, Freedman said.

The push to decriminalize marijuana began in earnest in the 1990s as a reaction to the Reagan-era “war on drugs,” which activists argued had yielded overly severe penalties. Initially they argued for allowing marijuana for medical purposes, as research suggested that it could ease pain and nausea.

Five states and the District of Columbia approved medical marijuana in the 1990s, with eight more joining them in the 2000s. And as the cultural battles of the 1960s faded, states allowed recreational use as well, with Colorado in 2014 becoming the first to allow special dispensaries to sell marijuana for recreational use.

Currently, 37 states and D.C. allow medical marijuana use, while 19 states allow the drug for recreational purposes, according to the National Conference of State Legislators. But even as states moved toward greater acceptance, the federal government continued to treat it as dangerous and illegal, creating an unusual tension between the two.

Five states have cannabis laws on the ballot in November, potentially adding to the momentum. Meanwhile, at least some federal lawmakers cheered Biden’s move.

“Cannabis justice is racial justice!” tweeted Rep. Joyce Beatty (D-Ohio), who chairs the Congressional Black Caucus.

Scott Clement contributed to this report.