When President Joe Biden unveiled his surprise bundle of marijuana reforms Thursday, it rocked the world of experts who specialize in drug policy.
“It’s almost two years into his presidency, so it did catch me by surprise,” John Hudak, deputy director of the Center for Effective Public Management at the Brookings Institute who has written a book on the history and politics of marijuana, told TPM. “He finally came through. It should not be understated this is the most pro-reform move that a President has ever taken with regard to cannabis in U.S. history.”
“It is the most promising movement in this direction in a long, long while,” added David Herzberg, a historian at the University of Buffalo who focuses on drug commerce and policy.
The reform comes in three chunks: Perhaps most importantly, Biden directed a review of cannabis’ schedule I designation — a category reserved for the drugs most likely to be abused and that have no medical use. He also issued a blanket pardon for “all prior federal offenses of simple possession,” and a call for governors to follow suit with state-level charges.
It’s a sign of how difficult it has proven to achieve any reform on the federal level that the fairly modest bundle of proposals is still considered so significant.
The federal pardons, for example, are confined to a relatively small universe of people. No one is currently in federal prison for simple marijuana possession, according to senior administration officials. They estimate that the relief will affect about 6,500 people with prior federal offenses, and potentially “thousands” more under D.C. code.
But experts still see Thursday’s announcement as opening the door to forgiveness beyond the minor violations.
“The pardons themselves only apply to a small, limited group — not that many people get picked up for federal marijuana offenses,” Doug Berman, executive director of the Drug Enforcement and Policy Center at Ohio State University’s Moritz College of Law, told TPM. “But thousands are serving for bigger marijuana charges and it’ll be interesting to see how those folks try to leverage this as a defense: ‘Hey, I should get resentenced — what Biden did doesn’t cover me, but it’s a clear statement he doesn’t think this is serious stuff.’”
Biden’s call for governors to follow suit could also give Democratic state officials and the advocates who lobby them some momentum. And while many red state governors will be loath to do anything Biden tells them to, some who represent bluer or purpler constituencies might consider it.
“I’m interested to look at states like Maryland for instance — states with moderate, retiring Republican governors,” Hudak said.
But while experts applauded the first steps in rectifying what many have characterized as a war on a not particularly dangerous drug-turned-war on people of color, they identified the scheduling review as the “big ticket item” out of those announced Thursday.
“Cannabis being in Schedule I has been one of the key practical and symbolic bulwarks of a drug policy based on political expedience and social prejudices for nearly a century,” Herzberg said. “Changing that — or even having a serious national conversation about changing that — means rethinking the basic logic by which we regulate drugs.”
As Biden pointed out in his video announcing the reforms, marijuana’s classification nestles it alongside drugs like heroin, and puts it in a more dangerous class than fentanyl, which is a schedule II drug. Decriminalization advocates often point out that the requirement that schedule I drugs have no accepted medical use rings especially hollow with marijuana, as 37 states and Washington D.C. have legalized it for medical purposes.
There have been petitions to reschedule marijuana before, dating back to 1972, but they’ve all been unsuccessful. Members of Congress have also introduced bills to deschedule the drug, or to reschedule it to a lower classification, but most have died in committee. In a sign of the changing times, a bill to remove marijuana from the list of controlled substances did pass the House in 2020, but didn’t get any further.
This time could be different.
“It’s important to look at who will be involved,” Hudak said. “HHS Secretary Becerra is on the record supporting cannabis reform and at his confirmation hearing, Garland said things indicating that changes need to happen to cannabis policy in the United States. This is unlike prior environments in which petitions have been entertained.”
The attorney general can reschedule or deschedule a drug (though he has historically delegated that responsibility to the Drug Enforcement Agency). The Health and Human Services secretary performs a scientific and medical evaluation, and recommends either proper scheduling for the drug or for it to be descheduled altogether. If the HHS secretary concludes that the drug should be descheduled, that recommendation is binding on the AG. If the HHS secretary recommends no movement or a different scheduling, that recommendation is not binding.
Both Becerra and Garland have spoken on the record about loosening the punitiveness around marijuana use, Becerra extensively.
“In California, we decided it was best to regulate, not criminalize, cannabis. Unlike others, we embrace, not fear, change. After all, this is 2018, not the 20th century,” Becerra said in 2018. “At the California Department of Justice we intend to vigorously enforce our state’s laws and protect our state’s interests.”
He’s also called for Congress to pass legislation to let cannabis businesses use banking services.
Garland fielded a question from Sen. Cory Booker (D-NJ) about disparity in cannabis enforcement during his 2021 confirmation hearing.
“The marijuana example is a perfect example,” he said then. “Here is a nonviolent crime that does not require us to incarcerate people and we are incarcerating at significantly different rate(s) in different communities. That is wrong and it’s the kind of problem that will then follow a person for the rest of their lives.”
He added that “We can look at our charging policies and stop charging the highest possible offense with the highest possible sentence.”
Biden has directed the review to potentially reschedule the drug, not to deschedule it. Descheduling the drug, taking it off the Controlled Substances list altogether, would remove the criminal penalties associated with the drug.
“I think it’s a huge step,” Hudak said. “Rescheduling really only makes it easier to research cannabis, whereas descheduling is the real major step. But most public policy changes incrementally, and I think if Biden starts the process now, this is not the end.”
