President Joe Biden will direct U.S. Secretary of Health and Human Services Xavier Becerra and Attorney General Merrick Garland to review how marijuana is classified under federal law as a Schedule I drug, the Drug Enforcement Agency’s most dangerous classification that includes substances like heroin and LSD (Kevin Dietsch/Getty Images).
WASHINGTON — President Joe Biden on Thursday announced executive actions that would pardon thousands of people with prior federal offenses of simple marijuana possession.
Biden then called on governors to follow suit with state offenses for simple marijuana possession, saying that “just as no one should be in a Federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either.”
The president also directed U.S. Secretary of Health and Human Services Xavier Becerra and Attorney General Merrick Garland to review how marijuana is classified under federal law as a Schedule I drug, the Drug Enforcement Agency’s most dangerous classification that includes substances like heroin and LSD.
Biden’s executive order to pardon simple possession includes the District of Columbia as well as people convicted in the federal court system.
“Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit,” Biden said in a statement.
‘Failed approach to marijuana’
The move is intended to address the country’s “failed approach to marijuana,” a senior administration official said Thursday afternoon minutes before the announcement.
Recreational use of marijuana is legal in 19 states, including the District of Columbia, but there is still a mix of laws related to the drug. In 38 states, marijuana is allowed for medical purposes.
There are three states—Idaho, Kansas and Nebraska—where marijuana is illegal in all forms, recreational or medical.
Civil rights organizations and researchers have shown that charges for marijuana possession disproportionately affect Black and brown communities. For example, the ACLU found that Black people were 3.7 times more likely to be charged with marijuana possession compared to white people.
Police made 663,000 arrests for marijuana-related offenses in 2018, according to FBI data, which amounted to 40% of all drug arrests for that year.
A senior administration official said Thursday that “while white, Black and brown people use marijuana at similar rates, Black and brown people are disproportionately in jail for it.”
Senior administration officials said that even if a person has not been charged or convicted of a marijuana possession, as of Thursday’s date, “the pardon does cover that conduct.”
The Department of Justice will create an administrative process for those who are pardoned to obtain a certificate of their pardon “so that they will have documentation that they can show to law enforcement, employers and others as needed,” a senior administration official said.
States moved first
States began decriminalizing or legalizing recreational use of marijuana in 2012, when Colorado and Washington voters passed statewide ballot measures. Over the next decade, 17 more states followed suit. Those states have operated for years in conflict with federal laws that have kept the substance strictly illegal.
The U.S. House passed legislation earlier this year to legalize marijuana nationally, but the bill failed to gain traction in the Senate.
The House voted 220-204 to approve the measure, which would fix the split between federal law and states where recreational marijuana is legal. Three Republicans joined all but two Democrats in approving the measure.
Missouri voters legalized medical marijuana in 2018. A proposed constitutional amendment legalizing recreational marijuana will appear on the Nov. 8 ballot. The proposal, which is called Amendment 3, also contains expungement provisions for nonviolent offenders.
John Payne, campaign manager for Legal Missouri 2022, the campaign behind the Missouri legalization proposal, applauded Biden’s expungement announcement. But he noted it only pertains to federal cases, whereas Amendment 3 will apply to state court.
“Much like everything with the federal government, the announcement on possible future rescheduling is frankly too little, too late and won’t change state marijuana prohibitions,” he said. “Only by passing Amendment 3 will we be able to regulate, tax and legalize marijuana in Missouri.”
Eapen Thampy, a longtime marijuana legalization advocate who opposes the Legal Missouri 2022 proposal, called Biden’s executive action “a victory for civil liberties in the United States.”
“It is our hope that Missouri Gov. Mike Parson will also establish a general pardon for marijuana offenders here in Missouri,” Thampy said.
A spokeswoman for Parson did not respond to a request for comment.
Democratic lawmakers reacted positively to Biden’s announcement, and several called for full legalization.
House Speaker Nancy Pelosi said federal drug policies relating to marijuana have harmed communities of color, and torn families apart.
“These transformative actions are the latest manifestation of Democrats’ unyielding commitment to justice, especially for those unfairly harmed by cannabis criminalization,” she said in a statement.
“This is a major step toward justice,” U.S. Rep. Diana DeGette of Colorado tweeted. “Now, we need to legalize it nationwide.”
“A great first step for equitable treatment under the law—but we can and we will do more when we (expand) our Democratic majorities in November,” Virginia’s Rep. Gerald E. Connolly said.
U.S. Sen Ron Wyden, an Oregon Democrat, applauded the move in a statement and called for passage of a bill he sponsored, along with New Jersey Democrat Cory Booker and Democratic Leader Chuck Schumer of New York, that would remove the substance from the list of controlled substances and expunge the records of anyone convicted of a marijuana-related crime.
“Legal protections for victims of the War on Drugs should be codified in law, cannabis should be descheduled and a federal regulatory system should be put in place to protect public health and safety,” he said. “Leader Schumer, Senator Booker and I have the bill to get it done. I look forward to working with President Biden to build on today’s movement and advance commonsense cannabis reform.”
Schumer called the action “historic” and said he hoped it would catalyze further congressional action.
“For far too long, the federal prohibition on cannabis and the War on Drugs has been a war on people, and particularly people of color,” the New York Democrat said in a statement. “President Biden’s action to pardon people convicted of simple marijuana possession under federal law is a huge step forward to correct decades of over-criminalization.”
Chair of the House Education and Labor Committee Bobby Scott, a Virginia Democrat, said in a statement that incarcerating people for possession of marijuana does not keep communities safer and is a waste of federal resources.
“We should instead be using those funds on evidence-based prevention and early intervention initiatives that actually reduce crime and save money,” he said.
GOP ties pardons to crime
Many more Democrats than Republicans commented on the move, which is in line with most Americans’ views on marijuana. A MorningConsult/Politico poll this month found that 60% of respondents favored legalization.
Republicans who did comment largely framed the initiative as soft on crime. Republicans are making rising crime rates a campaign issue in next month’s elections.
“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, a Republican of Arkansas, said on Twitter. An earlier version of the tweet, which was deleted after nine minutes, complained of pardons to “pot heads.”
Arkansas Gov. Asa Hutchinson, who is retiring this year, said in a statement that the Justice Department should not issue “blanket pardons” and each offender should be looked at individually. Hutchinson was the director of the Drug Enforcement Administration under President George W. Bush.
“As Governor I have issued hundreds of pardons to those who have been convicted of drug offenses,” he said. “But in this time of rising crime there should a clear record of law-abiding conduct before pardons are issued.”
Hutchinson is staunchly anti-legalization and has publicly opposed the proposed constitutional amendment on the Nov. 8 ballot that would create a legal marijuana regime in Arkansas.
Candidates campaigning for Congress quickly weighed in on the announcement as well, with Pennsylvania Democratic Senate candidate John Fetterman saying in a statement that it’s “a massive step towards justice.”
“Too many lives—and lives of Black and brown Americans in particular—have been derailed by this criminalization of this plant,” Fetterman said.
Ohio Democratic Rep. Tim Ryan, who is running for the open Senate seat, tweeted “legalize it” from his congressional Twitter account.
Schedule 1 drug
Unless Congress changes federal marijuana laws or the president takes further action, marijuana is likely to stay classified as a Schedule 1 drug for the near future.
Senior administration officials said Thursday it will take a while for the HHS secretary and the attorney general to assess if marijuana should stay in the highest classification or drop to a lower category within the DEA’s system.
“The process will take some time, because it must be based on a careful consideration of all of the available evidence, including scientific… and medical information that’s available,” the senior administration official said, adding that while Biden hasn’t set a timeline he wants the review to be “expeditious.”
The DEA has five schedule classifications for legal and illegal drugs, with Schedule 1 including substances with a high potential for abuse and no medical use. Heroin, LSD and peyote are classified as Schedule 1 drugs along with marijuana.
The next category, Schedule 2 is supposed to host drugs with a high potential for abuse and that can lead to “severe psychological or physical dependence,” according to the DEA. Cocaine, fentanyl, methamphetamine and oxycodone are all currently classified as Schedule 2.
Schedule 3 includes substances with a low to moderate likelihood of physical and psychological dependence, such as anabolic steroids and testosterone. Schedule 4 hosts drugs like Xanax, Valium and Ambien that have a low potential for abuse, according to the DEA. And Schedule 5 includes substances with a lower possibility of abuse than Schedule 4.
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