Jose Luis Magana/AP Photo
A demonstrator waves a flag outside the White House during a protest for marijuana legalization, April 2, 2016, in Washington.
President Biden finally met the moment with a right-on-time proclamation pardoning all federal and District of Columbia convictions for simple marijuana possession. Among the most significant developments in drug policy since Congress passed the Controlled Substances Act in 1970, the proclamation marks a stunning evolution for Biden, one of the architects of harsher “War on Drugs” penalties and a parent who grappled with his younger son’s drug abuse. One month before midterm elections that increasingly look like a choice between clinging onto democracy and belly-flopping into autocracy, the decision comes off as a brilliant strategic gambit that demonstrates that the Biden administration is serious about using executive powers when Congress declines to act expeditiously to reverse the serious harms woven into the fabric of American life.
This proclamation says more to the average voter about how government intersects with their daily lives than most of the inside-the-Beltway, three-dimensional chess moves of the past two years. Coming on the heels of recent developments, the surprising passage of the Inflation Reduction Act, the massive hurricane aid package to Florida, and a “no one f***s with a Biden” Fort Myers hot mic exchange that sent Dark Brandon memes careening around the interwebs, the president has scrambled the odds for holding on to both houses of Congress, odds that many in the commentariat took great glee in pummeling him with a few months ago.
Biden leaves Republicans boxed in on marijuana legalization. Pearl-clutching reactionaries will undoubtedly harass Democratic candidates with “crime” and “drug addicts” and “those people” ads and accusations in the weeks ahead. But opposing cannabis reform is not going to generate the heat and light that they seek. A Morning Consult/Politico September 30–October 2 national tracking poll found that 60 percent of respondents supported marijuana legalization and 63 percent “strongly support” or “somewhat support” the April House vote to legalize cannabis.
But certain expectations about the proclamation’s reach should be tempered. About 6,500 people stand to benefit. (There are no people currently serving sentences in federal prisons for simple possession.) A “certificate of pardon” would mean, for example, that a person with a simple cannabis possession offense would no longer have to check a “criminal record” box on applications for employment or college financial aid.
A presidential proclamation also has no force of law in the states and localities where the vast majority of convictions have been handed down, which means that people will continue to face consequences of previous possession convictions depending on the state where they live. These jurisdictions will have to take their own steps—and the president encouraged governors to take them—to eliminate simple possession convictions from a person’s record. How far a pardon actually goes depends on the language a state or locality uses. Expungement, for example, delivers more of a “clean slate” approach that permanently removes convictions from a person’s record.
The president directed the Departments of Justice and Health and Human Services to “review expeditiously how marijuana is scheduled under federal law” to determine whether the drug should be rescheduled, that is, removed from the most restrictive tier where it is classed with heroin and LSD. What “expeditiously” means in a high-profile, federal bureaucratic context is anyone’s guess.
There is a long slog ahead on the road toward cannabis legalization. But this presidential proclamation sends a strong signal to African Americans and Latinos, two disaffected constituencies whose interest in voting this time around is by no means guaranteed, that the White House is moving in a positive direction that merits casting a ballot to avoid hitting the brick wall that losing Congress to a punishment-obsessed Republican Party would mean.
