,

President Joe Biden made headlines recently when he announced that he was finally following through on his campaign promise to free low-level federal cannabis criminals. But the White House has confirmed that there are no eligible prisoners currently serving time for cannabis in federal prison, and no one will actually be released.

On Oct. 6, Biden released a statement saying he would be pardoning “all prior Federal offenses of simple possession of marijuana.”

“There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result,” said the President. “My action will help relieve the collateral consequences arising from these convictions.”

But that same day, during a press conference, a senior White House administration official told reporters that there are no eligible prisoners currently in federal prison for “simple possession of marijuana.”

When a reporter asked the official if the administration could provide an exact number of people who would be affected by the pardons, the official said over 6,500 citizens between 1992 and 2021 were convicted of simple possession of marijuana. “So there are no individuals currently in federal prison solely for simple possession of marijuana,” added the official. “And again, the President is calling on governors to take this action as well, because it’s important because most of the marijuana possession convictions are happening at the state level.”

Simple

The key term here is “simple possession.”

The pardon does not apply to convictions for possession of drugs other than cannabis or for charges relating to producing or possessing marijuana with an intent to distribute. Non-citizens who were arrested in the U.S. without legal status are also ineligible.

But most cannabis arrests are done at the state level by local jurisdictions. It’s rare that federal agents will arrest anyone for simple cannabis possession. The charge is usually added onto other more serious charges to increase sentencing.

The administration is now encouraging state leaders to take point on releasing cannabis prisoners. “I am urging all Governors to do the same with regard to state offenses. 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,” said Biden.

The president’s pardoning will help to clear the records of thousands of people who were imprisoned for cannabis in the past, but critics have accused him of taking part in political theater at a critical juncture ahead of the midterms. The pardons have garnered voter goodwill but will not actually be freeing any active prisoners. And the administration still has made no move to decriminalize cannabis and remove it from the list of controlled substances—as Biden and Vice President Kamala Harris promised on the campaign trail.

Crime Bill’s Repercussions

Biden’s hesitancy to decriminalize cannabis even while the vast majority of citizens support its federal legalization may have something to do with the 1994 Crime Bill—Violent Crime Control and Law Enforcement Act—which then Sen. Biden helped to draft.

The Crime Bill has been blamed for the high rates of incarcerations in the U.S., particularly the imprisonment of Black and brown people. The law provided funds for states to build more prisons, hire 100,000 more police officers and initiate programs that encouraged more drug arrests. It also made steeper sentences for federal crimes, increased mandatory sentencing minimums and applied the death penalty to 60 offenses.

Americans were concerned about rising crime rates and the crack epidemic. The Democratic party had been accused of going soft on criminals, and the Crime Bill was meant to counter that image. It was also meant to wrest the issue from Republicans.

“Let me define the liberal wing of the Democratic Party,” Biden said at the time. “The liberal wing of the Democratic Party is now for 60 new death penalties. That is what is in this bill. The liberal wing of the Democratic Party has 70 enhanced penalties. … The liberal wing of the Democratic Party is for 100,000 cops. The liberal wing of the Democratic Party is for 125,000 new state prison cells.”

In 2019, during the presidential elections, Sen. Cory Booker (D-NJ) criticized Biden’s role in the Crime Bill. “Joe Biden had more than 40 years to get this right,” he wrote after Biden had unveiled his plans for justice reform. “The proud architect of a failed system is not the right person to fix it.”

Biden faced criticism during the presidential race for his part in the law’s creation, but he has repeatedly downplayed its significance. “Folks, let’s get something straight: 92 out of every 100 prisoners end up behind bars are in a state prison, not a federal prison,” said Biden during a 2019 campaign event. “This idea that the crime bill generated mass incarceration—it did not generate mass incarceration.”

In fact, incarceration rates slowed overall after the introduction of the Crime Bill. But based on annual reports by the U.S. Bureau of Justice Statistics, the Black incarceration rate rose from about 1,200 per 100,000 in 1985 to about 2,450 per 100,000 in 2000.

Whether it drove those rates or not, the Crime Bill cemented the War on Some Drugs by increasing minimum sentences for drug offenses, including those related to cannabis.

Meanwhile, the administration has been making the rounds to ensure that its performative action is caught in the spotlight. VP Harris appeared on “Late Night with Seth Meyers” last week, where she said the White House would continue urging state governors to move forward with their own cannabis reform efforts and laid the burden of federal reform on Congress. “If Congress acts, then there is a uniform approach to this and so many other issues, but Congress needs to act,” she said.