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Just in time for the New Year, President Joe Biden has once again tipped his hat toward the cannabis vote by issuing a mostly performative federal marijuana pardon to those who are incarcerated. But the pardons will not actually free anyone from prison, and advocates say the president is still not doing enough to address the harms of the drug war.
Near the end of last month, the president issued a federal pardon to those arrested for simple possession of marijuana, attempted simple possession of marijuana or use of marijuana in violation of federal and Washington D.C. laws. The new round of pardons expands on Biden’s previous proclamation, made in October 2022—just before the midterm elections—pardoning the offense of simple possession of marijuana alone.
The proclamation also commuted the sentences of 11 people who were arrested for non-violent drug offenses that were not related to cannabis.
As with the previous pardoning, the White House claims that thousands will be affected by the proclamation.
“Criminal records for marijuana use and possession have imposed needless barriers to employment, housing, and educational opportunities,” Biden said in a statement. “Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs.”
But advocates are pointing out that the most recent set of pardons, similar to the first set, will not actually result in anyone being released from federal prison.
Most cannabis arrests are related to the possession of small amounts of the drug, but those cases involve the violation of state laws, so they are handled at the state level. For someone to violate federal possession laws, they would have had to be in possession of much larger amounts.
That means people locked up for “simple possession of marijuana” are all but non-existent.
Cannabis reform advocates criticized the previous pardon as a performative flex with no substance meant to bolster waning support for the Democratic party ahead of the midterms.
Biden and Vice President Kamala Harris both made a lot of promises to weed advocates during the 2020 presidential campaign but failed to deliver on any of them. The first set of pardons was seen as an attempt to pacify those advocates without actually following through on those campaign trail promises.
This second set of pardons may have been drafted with the same goal in mind, but it might instead be seen as a slap in the face to those who criticized the first. The two additional crimes being pardoned are even less serious than simple weed possession. The first is attempting to buy a small amount of weed, and the second is using weed.
Advocates say it doesn’t go nearly far enough to address the harms that the War On Some Drugs has had.
“With the simple stroke of a pen, President Biden could release nearly 3,000 people currently incarcerated in federal prison for cannabis,” said advocacy group Last Prisoner Project in a statement. “We urge the President to use his clemency power to commute all federal cannabis sentences and urge Congress to enact a federal expungement law.”
Biden’s pardon isn’t exactly automatic, either. Anyone who was incarcerated for the offenses in the past will have to submit an application to the Department of Justice (DOJ) to receive a certificate of pardon.
To the president’s credit, he did call for state-level marijuana pardons as well.
“Just as no one should be in a federal prison solely due to the use or possession of marijuana, no one should be in a local jail or state prison for that reason, either,” he said in a statement. “That’s why I continue to urge Governors to do the same with regard to state offenses and applaud those who have since taken action.”
Of course, “urging” governors to take reformative action in a public statement isn’t quite the same thing as personally requesting it in private or calling for a new plank in the party’s platform. Cynics may also note that this latest pot clemency action comes right before the start of an election year, just as the previous clemency action occurred ahead of the midterms.
One thing the president could do to gain back angry voters would be to push the Drug Enforcement Administration (DEA) to reschedule cannabis under the Controlled Substances Act. Last year, the Department of Health and Human Services (HHS) recommended that marijuana be reclassified from Schedule I to Schedule III. The current designation classifies weed as a drug with high potential for abuse and no accepted medical use—despite the fact that nearly 75 percent of states have legalized its medical use. Drugs in Schedule III have a “moderate to low” chance of causing use disorders and some medical value.
The DEA has the final say on whether it will be rescheduled, but it’s expected to do so, since the HHS is the federal authority on science in this area and the DEA has no reason to contradict it.
While rescheduling cannabis wouldn’t decriminalize the drug—a campaign trail promise made by Harris—it would make it easier for researchers to study the drug, and it would be a big reform step that would gain back some lost graces among pot activists. The HHS recommendation came at the behest of Biden, and the administration still has time to put pressure on the DEA to hurry up and act on it before the presidential race heats up in earnest.
Rescheduling weed would make a much bigger splash than either of these pardon proclamations—in both the headlines and in the everyday lives of actual cannabis users. The single-issue voters out there who support weed law reform can be won over if the administration at least makes the effort to appear to move the dial toward decriminalization. The way things are going, it will need every vote it can get.