Citing “over a century of failed and racist cannabis policies,” Sen. Elizabeth Warren and two other leading Democrats have joined a growing chorus of activists, celebrities and lawmakers calling on President Joe Biden to pardon people with federal marijuana convictions and set up a process for formally clearing their criminal records.
Warren joined fellow Massachusetts Sen. Ed Markey and Sen. Jeffrey Merkley of Oregon in sending a letter to Biden last week requesting a “blanket pardon” for all nonviolent federal marijuana convictions. The lawmakers urged Biden to use his constitutional authority to pardon a “broad class” of people, which would fulfill “promises” made by Biden on the campaign trail and transform the lives of “tens of thousands of Americans,” including those who are currently in prison and formerly incarcerated people who may have difficulty accessing jobs and services due to their criminal record.
Biden is facing mounting pressure to take executive action on marijuana from advocates and Democrats who have introduced sweeping bills in the House and Senate that would end federal prohibition and expunge convictions — but those bills are once again at risk of falling on the back burner. The House made history last year by passing an earlier version of the legislation that died in the Senate, and so far, Democrats have used their slim majority in Congress to prioritize a host of other issues during the current legislative session.
As a presidential candidate, Biden, who was debating Warren and other Democrats on marijuana policy at the time, said “we should decriminalize marijuana,” and declared people with marijuana convictions should be “let out of jail” and have their records expunged. In a pledge to “Black America,” the Biden campaign said the president would “decriminalize the use of cannabis” and “expunge all prior cannabis use convictions.”
The latter pledge to expunge convictions for cannabis “use” appears to fall short of requests by Warren and others to issue a “blanket pardon” for all nonviolent cannabis offenses, which would include people charged with growing and selling cannabis. Few people, if any, are caged in federal prison for simply using marijuana, and as medical and recreational cannabis sales continue to grow in dozens of states, the uneven enforcement of federal prohibition has become a major racial justice issue for Democrats.
“In the 1970s, President Nixon launched the War on Drugs over the objections of his own advisors and experts, spawning mass incarceration policies with devastating effects on Black and Brown families,” the senators wrote. “Today, despite legalization efforts across the country and roughly equal cannabis usage rates, Black Americans are still nearly four times as likely to be arrested for cannabis possession as white Americans.”
Biden has remained resistant to the idea of legalizing marijuana at the federal level, even as other Democrats say legalization’s sheer popularity among voters makes marijuana reform a political no-brainer. Instead, Biden has said he supports decriminalization, which typically means reducing or eliminating criminal penalties for possessing small amounts of a drug without lifting prohibition.
Fellow Democrats have warned for years that their party should champion marijuana legalization before Republicans attempt to take credit, and GOP efforts are indeed underway. On Monday, Republican Rep. Nancy Mace (R-South Carolina) introduced legislation in the House that would repeal federal marijuana prohibition and expunge nonviolent federal marijuana convictions to release people from prison and clear their criminal records.
The nonpartisan marijuana reform group NORML said Republicans have introduced previous legislation that would “narrowly amend” federal marijuana laws, but Mace’s is the first to provide relief to those who have been criminalized.
The Marijuana Opportunity, Reinvestment and Expungement (MORE) Act introduced by Democrats in the House would go further by prohibiting the denial of federal benefits and immigration protections based on marijuana convictions and funnel tax revenues from legal sales to programs for communities harmed by the drug war. Democratic Majority Leader Chuck Schumer has introduced similar legislation in the Senate.
“Between the previously passed MORE Act, the recent Senate proposal by Schumer, and this new bill, it is truly a race to the top for the best ideas and smartest approaches to responsible reform,” said Justin Strekal, NORML’s political director, in a statement.
In April, White House Press Secretary Jen Psaki said Biden supports legalizing medical marijuana while leaving decisions over whether to legalize and how to regulate recreational weed up to individual states, which the Democratic bills and Mace’s legislation are also designed to do. However, instead of ending the federal ban that is currently in conflict with multiple states, Biden supports “rescheduling” cannabis under the Controlled Substances Act, the federal law that regulates and prohibits psychoactive drugs.
Marijuana is currently a Schedule I drug considered by the federal government to have no “currently accepted medical use” and therefore completely banned, which flies in the face of plenty of research on medical cannabis and the evidence from millions of patients. If “rescheduled” under Schedule II, cannabis would join a list of highly regulated drugs including powerful prescription painkillers that are considered “dangerous,” but researchers would have easier access to cannabis for studying its “positive and negative effects,” as Psaki put it.
Biden has said he opposes legalization until there is more research on the health risks of cannabis, a view that experts say reflects the opinions of older voters in Biden’s generation and family members of people who developed substance abuse disorders.
However, many of the positive and negative effects of cannabis are well known and the drug is already widely used in every corner of the nation despite federal prohibition. Advocates, leading Democrats and a growing number of Republicans say marijuana should be “descheduled” and removed from the Controlled Substances Act altogether, which would effectively end federal prohibition.
“At this point, it is nonsensical and cruel for President Biden to stand by any position that is not in full support of descheduling marijuana, particularly when the tide is now turning toward full drug decriminalization,” Maritza Perez, the national affairs director at the Drug Policy Alliance, recently told Truthout.
On October 6, Warren and Sen. Cory Booker (D-New Jersey) sent a letter to Attorney General Merrick Garland requesting that his office initiate a multiagency review of cannabis scheduling, which would be the Biden administration’s first step toward removing marijuana from Schedule I without waiting for Congress to pass legislation. The senators gave Garland until October 20 to respond, but it remains unclear if Garland intends to act. The Department of Justice and both Warren and Booker’s offices have not responded to repeated requests for comment.
A recent Congressional Research Service report states that Biden could also kickstart the administrative process for descheduling marijuana with executive orders urging federal agencies to conduct a health review and start a rulemaking process. The Office of National Drug Control Policy, the White House’s drug policy office, did not respond to a request for comment on the calls to deschedule marijuana and issue a “blanket pardon” for past convictions.
An effort by the Biden administration to deschedule marijuana administratively would take time and likely face legal challenges. Warren, Markey and Merkley wrote that issuing a blanket pardon for people with nonviolent cannabis convictions and setting up a process for expunging criminal records would allow President Biden to “act now.”
“Most importantly, such a pardon — combined with your leadership on an accessible expungement process to formally clear the criminal records of those affected — would mark the beginning of a reversal of decades of ineffective and discriminatory cannabis policies, allowing Americans to return to their communities, find housing and jobs, and rebuild their lives without the burdens of an unjustly imposed criminal record,” the senators wrote.