“It makes no sense.” 

A statement Americans and cannabis advocates have said for literally decades was finally uttered by President Biden yesterday during his statements addressing federal marijuana reform. The phrase was both welcomed and yet infuriating for advocates who have been fighting for federal cannabis reform since Harry J. Anslinger preemptively ruined the lives of millions of people. Indeed, for 15 years short of a century, we’ve been shouting from the mountaintops, “It makes no sense”...and also, “What the fuck is going on?”

For many Americans, it was a monumental day in the United States. In what is likely one of the biggest steps toward federal acceptance and decriminalization of cannabis by any president, Biden declared three areas of action for his (more on this later) failed approach to the War on Cannabis.

The three actions: 

1. The pardoning of all prior federal offenses for the simple possession of marijuana.  

2. The call for all governors to follow suit with regard to state possession offenses.

3. The exploration of rescheduling or de-scheduling cannabis. 

The first action amounts to roughly 6,500 pardons for those who were more than likely local to D.C. (since it’s federally controlled) or those who were caught smoking a doobie in a national park. Don’t get me wrong, I don’t mean to make light of this win. 6,500 (and many more) people deserve to have justice and the restoration of their lives. We’re all celebrating their pardons and want to see more people receive their due justice. However, for many advocates, it falls shy of what could have been a more impactful action. 

To clarify, a pardon does not clear someone’s record; however, it may restore someone’s right to vote or change their eligibility to apply for a license to carry a firearm. Although a pardon is technically “forgiveness” for the crime, what a pardon is not? Expungement. When a crime is expunged from someone’s record, the criminal conviction is destroyed or sealed from state or federal records. 

According to the American Bar Association, “An expungement order directs the court to treat the criminal conviction as if it had never occurred, essentially removing it from a defendant’s criminal record as well as, ideally, the public record.” Having a criminal conviction expunged is quite difficult and comes with many requirements. So, as much as Biden’s pardon order will positively impact those who receive them, it may not improve their likelihood of changing the fact that  “thousands of people who have prior federal convictions for marijuana possession, … may be denied employment, housing, or educational opportunities as a result” - as Biden pointed out in his statement - because the conviction will still be on their record. 

According to NORML, “Possession of marijuana is punishable by up to one year in jail and a minimum fine of $1,000 for a first conviction.” With each additional conviction, the penalties increase. For a second conviction, the person in question would receive “a 15-day mandatory minimum sentence with a maximum of two years in prison and a fine of up to $2,500. Subsequent convictions carry a 90-day mandatory minimum sentence and a maximum of up to three years in prison and a fine of up to $5,000.”

According to F.B.I. data, approximately 170,800 of the roughly 490,000 drug possession arrests in 2021 - about 35% - were related to marijuana possession. That number has since increased 

The Bigger, and More Impactful Pieces of This Announcement

The call for all state governors to follow suit can make a much larger impact across the United States for hundreds of thousands of people - especially people of color. It may also open the door to wider conversations about what types of convictions may be up for pardoning. 

A retroactive action of pardons is a huge deal because oftentimes it’s only for those moving forward. At such a pivotal moment in the election cycle, many have called his call on states “political theater,” and that opinion is reverberating throughout the cannabis industry. Why make this request a month before elections instead of within the first 100 days of his presidency as he had promised? 

Now, as new governors take office, the movement on these efforts will likely take a back seat as hands change. All we can do is hope for urgency on the state level at this point. 

The Biggest Win? 
Some may be pondering the next steps with questions like, should we reform banking or the 280E tax code?; or, should we reschedule or de-schedule?; or, is legalization the answer? But for Kari Boiter, the president of the Women's Organization for National Prohibition Reform (or WONPR), the choice is clear. 

“Descheduling needs to happen before legalization because, as long as it’s a Schedule I substance, cannabis will still be a crime,” Boiter said. The exploration of rescheduling or de-scheduling cannabis has the potential to pave the pathway to legalization, free innocent victims of the war on drugs, and open the doors to federal banking in one home run swing. 

For Boiter, a disappointing realization was that many victims of unfair long-term sentences, like Luke Scarmazzo who is serving a 22-year prison sentence for providing state-legal marijuana in Modesto, Calif., were not pardoned. “This is another example of one more rung on the ladder of ending prohibition,” Boiter explained, “but it’s a mixed bag for us - because so many people are left behind. With every victory we get, there’s another victory we need to go for. Until people no longer lose their children, jobs, homes, their livelihoods, freedom, liberty - until justice is served, we can’t stop fighting”. 

If states do follow suit by creating mechanisms for release, pardoning, and expungement on the state level, it has the potential to impact hundreds of thousands of people. But the parameters of these pardons need to be looked at from another angle. In the ‘90s, they made hundreds of thousands of arrests for possession of a nug, a wrapper, or a roach. In the present day, those charged with possession typically have other charges tacked on - making the pardoning not quite as far-reaching as it could be. 

For Scarmazzo, the California state-legal dispensary owner who was charged on the federal level in 2006 with 18 counts for conducting a criminal enterprise, conspiracy, manufacturing, distributing, and possessing cannabis, his reality is not unlike others who were harshly penalized - yet won’t see pardons for their non-violent cannabis “crimes.” 

American’s from nearly every demographic feel that pardons should reach well beyond “simple possession,” so long as they were non-violent crimes. Many states have limits on the amount of cannabis found in someone’s possession. In Montana, it's 40 grams. If you have 40.2 grams, the possession charge becomes a federal offense. If there is justice in pardoning only those with possession for specific amounts, how or what are we determining to be the crime? What about those who grew their own?

For example, if your grandma made cannabutter and was found with it, she’s now slammed with manufacturing, and depending on if she had a food scale in the house or a batch of cookies in a bag, she could get charged with intent to distribute. For so many, being pardoned for a simple cannabis possession charge won’t cut it.

Usually, the legislative change applies moving forward, not retroactively. If we decriminalize cannabis in general, an important next step would be retroactive amnesty for all non-violent cannabis offenders (like they did for draft dodgers during the Vietnam war). 

This IS Biden’s Mess to Clean Up

For those who were adults or old enough to remember the crime bill authored by Biden in 1994, they know the realities that the law did anything but reverse decades of rising crime - which it “aimed to do” Instead, it was one of the major contributors to mass incarceration in the 1990s. Though, if you ask Biden, he’ll tell you otherwise. 

During Biden’s statement yesterday, he called out the disproportionate impact the War on Drugs has had on communities of black and brown people. A criticism that was largely ignored for nearly 30 years. He claims that the true issue was institutional racism, clearly missing the fact that his law is, quite literally, institutionalized racism. 

Vice President Kamala Harris isn’t innocent either. Her track record as a prosecutor who was very tough on drug crimes impacted many people who had non-violent cannabis offenses. She’s since admitted that looking back on her approach, she’s taken missteps and wants to work toward correcting those actions. 

Boiter made a final statement to say, “Joe Biden was one of the architects of the drug war, and especially the tough-on-crime era. He passed a lot of these laws, so it IS his responsibility to reverse the damage that he’s done, as well as his vice president, Kamala Harris, who prosecuted a lot of people under the laws that he passed.” she continued,  “If anybody is going to go above and beyond and really take a bold step in leadership, It should be Joe Biden. He owes it to all of us.” 

While we wholeheartedly need to acknowledge yesterday’s moves as positive for the fight to end the war on cannabis, we have much more work to do. This is a start, now it’s time to pour gas on the flames to free hundreds of thousands of prisoners of this plant and free future generations from the same horrible fate.