President Biden made major news last week when he announced that he will use his pardon power to grant clemency to people convicted of federal crimes for possessing marijuana. No one is currently in federal prison for possessing marijuana. But Biden’s move will clear the record of over 6,000 people convicted previously of possession and possibly thousands more in the District of Columbia.
Biden also directed the Departments of Justice and Health and Human Services to review how the federal government classifies marijuana under federal drug laws, possibly leading to classifying marijuana as a drug with both medicinal benefit and potential for abuse. That review of marijuana’s placement on the schedule could take a long time.
Biden’s decisions could affect some midterm congressional elections. But most of the action over legalizing marijuana remains in the states. Here’s why.
Don’t miss any of TMC’s smart analysis! Sign up for our newsletter.
How Biden’s move could affect the 2022 midterm elections
In the 2020 Democratic presidential primary, Biden espoused some of the most conservative views on marijuana compared to those of his party rivals. However, Democrats still made marijuana reform a key part of their 2020 platform, promising to decriminalize marijuana use and change its federal classification. Whatever Biden’s personal views, his recent actions follow the party platform to a T.
That’s not all that surprising — especially on the eve of closely contested midterm elections. It’s popular policy, especially with voters of color, younger Democrats and independents. Probably the single candidate with the most to gain is Pennsylvania’s John Fetterman. Running in the most flippable Senate seat for Democrats, Fetterman has made marijuana legalization central to his campaign and to his last four years as Pennsylvania’s lieutenant governor. Fetterman spoke with Biden about marijuana reform at a Labor Day event in Pittsburgh, so the fortuitous timing of the White House’s action allows him to claim some credit in a key race for the Democrats.
What’s more, public views on marijuana have shifted rapidly, something we wrote about here at TMC a few years ago, after Oklahoma voters approved one of the most liberal medical marijuana policies in the nation. More broadly, since 1969, Gallup has been asking Americans if they think the use of marijuana should be legal. The proportion of Americans favoring legalization has steadily increased from only 12 percent in 1969 to 68 percent in 2021, with even half of Republicans now supporting legalization. And when surveys distinguish between medical and recreational marijuana, nine in 10 Americans believe that at least medicinal use should be legal.
Biden’s broad marijuana pardon does have precedents — like amnesty for Vietnam War draft dodgers.
Cannabis is still a states’ issue
In announcing the changes, Biden made clear that the real action remains in the states. Biden called on governors to similarly pardon state possession offenses. If governors comply, pardons could expand to millions of individuals. In 2019 alone, more than 500,000 people were arrested for cannabis-related crimes. Between 2001 and 2010, 8.2 million Americans were arrested for marijuana crimes, nearly 90 percent of which were for simple possession, falling disproportionately on people of color.
Still, the full impact of Biden’s order can’t yet be known. First, drug crime data is inconsistently reported and does not separate possession from distribution charges. Second, a few states have already started to expunge marijuana convictions. Third, it’s unclear whether Biden will introduce incentives for state compliance. Further, some governors’ pardon power is limited or vested in other bodies. Several governors and gubernatorial candidates have already weighed in, with predictably partisan comments. Democratic governors and candidates are embracing the pardon announcement, if not claiming credit for already addressing the issue in their state. Most Republican governors and candidates have been silent, skeptical or defiant.
Notably, states have been innovative despite the administrative hurdles created by federal prohibition. Thirty-seven states have adopted comprehensive medical marijuana programs since 1996; 19 states have adopted recreational programs since 2012. Over this period, the states have worked out the kinks in implementing medical and recreational marijuana programs through trial and error and by learning from other states. Recently, more states are addressing concerns in the industry related to social equity and corporate monopolies — trying to ensure that communities that were disproportionately harmed by prohibition get a stake in the industry once distribution is legal.
Biden’s decision could make this state-level innovation easier, while removing some of the most direct ways that federal prohibition complicates state marijuana policies. Marijuana’s classification as a Schedule I drug has restricted medical research. Furthermore, federal prohibition is costly for the marijuana industry — most notably by making it difficult or impossible for these businesses to have bank accounts, apply for loans, or take advantage of tax breaks that other businesses rely on to remain profitable.
Joe Biden could swing votes by legalizing cannabis
Taking the heat off Congress to act?
Almost three-quarters of both House and Senate lawmakers hail from states with a comprehensive medical marijuana or adult-use program. National legislators — including those not from marijuana-legal states — have increasingly tried to introduce bills that would either fully reshape federal marijuana policy or address some of the cannabis industry’s specific problems, like access to banking. Still, the Brookings Institution recently noted that congressional candidates have said little about marijuana during the 2022 election cycle.
Biden’s move could take some of the pressure off Congress to act. When Congress failed to change immigration laws, the Obama administration initiated the DACA and DAPA programs to at least protect young undocumented immigrants and their parents from deportation. Moving by executive order did reduce pressure on Congress to act — but left the policy open to being reversed by a Republican administration, although Donald Trump failed to do so. Nevertheless, legal action derailed DAPA and DACA remains in the courts.
Could a future Republican president undo the Biden administration’s changes? Perhaps a GOP president might order a new classification review. But of course a future president couldn’t reverse the pardons.
Professors, check out TMC’s new and improved classroom topic guides.
A. Lee Hannah (@LeeHannahWSU) is an associate professor of political science at Wright State University’s School of Social Sciences and International Studies.
Daniel J. Mallinson (@djmallinson) is an assistant professor of public policy and administration at Penn State Harrisburg’s School of Public Affairs.