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Biden Promised to Decriminalize Marijuana. He Shouldn’t Wait for Congress.

Biden is under pressure to fulfill a campaign promise to decriminalize marijuana and expunge convictions.

President Joe Biden leaves the White House in Washington, D.C., on October 5, 2021.

The Biden administration does not have to wait on lawmakers to end the federal prohibition on marijuana and provide some relief to people whose lives have been damaged by felony convictions, according to a new report from congressional researchers.

President Joe Biden can direct federal law enforcement to refrain from prosecuting marijuana charges and issue a blanket pardon to thousands of people already convicted, according to a new report from the Congressional Research Service.

Biden can’t wave a magic wand and legalize marijuana, but the report lays out pathways for the Biden administration to change the federal “scheduling” of cannabis as a prohibited substance under the Controlled Substances Act (CSA), the law that governs federal drug regulation and undergirds many state laws.

“Although the President may not unilaterally deschedule or reschedule a controlled substance, he does possess a large degree of indirect influence over scheduling decisions,” the report says. “The President could pursue the appointment of agency officials who favor descheduling, or use executive orders to direct DEA, HHS, and FDA to consider administrative descheduling of marijuana.”

“Descheduling” would remove cannabis products from the list of drugs regulated by the CSA, where marijuana is listed under Schedule 1 and therefore banned even for medical use. Marijuana could also be “rescheduled” into a lower category that regulates certain prescription drugs, but advocates say only “descheduling” would end federal prohibition and prevent unnecessary arrests.

“At this point, it is nonsensical and cruel for President Biden to stand by any position that is not in full of support of descheduling marijuana, particularly when the tide is now turning toward full drug decriminalization,” said Maritza Perez, the national affairs director at the Drug Policy Alliance, in an email to Truthout.

Biden is under mounting pressure to fulfill a campaign promise to “decriminalize” marijuana and expunge past convictions. Dozens of celebrities — including famous rappers such as Drake and Meek Mill — have joined congressional Democrats in urging Biden to issue a blanket pardon to all people convicted of non-violent federal marijuana violations. Democrats say a blanket pardon or “executive clemency” for marijuana convictions would trigger a sentencing rehearing for those still in prison, and some could be released depending on related charges.

On October 6, Senators Cory Booker (D-New Jersey) and Elizabeth Warren (D-Massachusetts) called on Attorney General Merrick Garland to kickstart an administrative process for descheduling marijuana, the first step toward “remedying the harmful racist impact” of enforcement, according to a letter to Garland’s office.

Advocates and policymakers point to extreme racial disparities in drug enforcement and sentencing that have filled prisons with Black and Brown people. Even as states legalized marijuana for medical and recreational use, the American Civil Liberties Union found that Black people are nearly four times more likely to be arrested for marijuana possession than white people, despite comparable rates of cannabis use. In states such as Montana and Kentucky, Black people are up to 9.6 times more likely to be arrested than whites, the result of racist “selective enforcement,” according to lawmakers and advocates.

“We know that descheduling marijuana would reduce drug arrest rates, particularly for Black people who continue to carry the weight of drug enforcement in this country,” Perez said in an email. “We also know that the ability to deschedule and provide conviction relief rests within the powers of the president.”

“Decriminalizing” a drug means reducing or eliminating criminal penalties for possession, while “legalizing” typically involves ending prohibition and setting up regulations for distribution and use. For marijuana in the United States, descheduling would end federal prohibition, but regulation would continue to be left up to the states unless Congress passes its own laws.

Many Democrats also see marijuana reform as a potent issue for rallying voters in upcoming elections as their legalization efforts continue to face an uphill battle in Congress. Today, a clear majority of Americans say the “war on drugs” has failed. Support for full legalization of recreational weed remains at an all-time high of 68 percent, including 50 percent of Republicans. In deep red states that have yet to legalize, even conservative voters are getting impatient.

“Should President Biden wish to acknowledge the political, economic, and moral realities surrounding cannabis policy, and fulfill the promises he made on the campaign trail, this report lays out a clear roadmap for how to do so,” said Justin Strekal, political director of the cannabis reform group NORML, in a statement.

Biden cannot unilaterally end federal marijuana prohibition or legalize and regulate cannabis at the federal level, a step that many states have already taken despite the federal ban. However, Biden can issue executive orders to urging federal agencies to start the administrative process for removing marijuana from Schedule 1, which would involve a rulemaking by the Drug Enforcement Agency (DEA) in consultation with the Department of Health and Human Services (HHS) and the Food and Drug Administration.

Garland can also initiate this process by asking HHS to conduct a medical and scientific review of marijuana scheduling and using those recommendations to make changes at the DEA. In their letter, Booker and Warren asked Garland to request a scheduling review and gave the attorney general until October 20 to respond. That deadline has passed, and it remains unclear if Garland has provided an answer. The Department of Justice did not respond to a request for comment from Truthout by the time this article was published.

The DEA funneled an average of $17 million annually into local marijuana eradication efforts in recent years and rejected petitions to reschedule marijuana in 2016, citing the government’s obligations under international drug control treaties. Booker and Warren point out that the United Nations recently voted to reduce cannabis restrictions, and treaty signatories such as Uruguay and Canada have legalized recreational marijuana completely, not to mention 18 states across the U. S. and counting.

The rulemaking process for descheduling marijuana could take time and be challenged in court, but along with a blanket pardon, it would send a strong message to voters and to Congress, which placed marijuana on Schedule 1 decades ago. Biden can also work with Congress to pass legislation, and a bill to decriminalize marijuana that includes racial justice provisions already cleared a key committee in the House. Rep. Cori Bush (D-Missouri) introduced historic legislation to decriminalize possession of small amounts of all drugs earlier this year.

However, similar cannabis legislation has stalled year after year, and drug policy reform is not a top priority for a White House focused on climate change, infrastructure and recovering from the COVID pandemic. If Biden is serious about racial justice and reducing incarceration, advocates say it should be a priority.

“Biden must act now and support congressional efforts to pass comprehensive marijuana reform and broad drug decriminalization,” Perez said.