Biden's Inaccurate and Inadequate Lip Service to Marijuana Reform Ignores Today's Central Cannabis Issue

President Joe Biden's perfunctory reference to marijuana reform during last night's State of the Union address further undermined his campaign's already iffy attempt to motivate young voters, who overwhelmingly oppose pot prohibition. Biden claimed he was "expunging thousands of convictions for the mere possession" of marijuana, which is not true, and declared that "no one should be jailed for simply using" marijuana—a proposition that was on the cutting edge of drug policy half a century ago.

Contrary to what Biden said, his pardons for people convicted of simple possession under federal law do not entail expungement of criminal records because there is no way to accomplish that without new legislation. The distinction matters because Biden has emphasized that "criminal records for marijuana possession" create "needless barriers to employment, housing, and educational opportunities." His pardons do not remove those barriers. The certificates that pardon recipients can obtain might carry weight with landlords or employers, but there is no guarantee of that.

In other words, Biden has not delivered on his campaign promise to "automatically expunge all prior cannabis use convictions." Yet Biden claimed otherwise last night, conflating pardons with expungements that would mean people convicted of simple possession no longer "have it on their record."

What about the idea that people should not be arrested simply for using marijuana? During his 2020 campaign, Biden promised to "decriminalize the use of cannabis." His pardons do not accomplish that goal either. Federal law still treats simple marijuana possession as a misdemeanor punishable by a minimum $1,000 fine and up to a year in jail. In any event, all but a tiny percentage of simple possession cases are prosecuted under state law.

"Biden made two promises on marijuana reform on the 2020 campaign trail—to decriminalize marijuana use and expunge records—and he has failed to deliver either," notes Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance. "Biden's pardons haven't released anyone from prison or expunged anyone's records."

We might credit Biden for at least having his heart in the right place if he had ventured to say that marijuana use should not be treated as a crime back in the 1970s, when that idea first gained traction. In 1972, the same year that Biden was elected to his first term in the U.S. Senate, the National Commission on Marihuana and Drug Abuse recommended decriminalization of marijuana possession for personal use. It also recommended that "casual distribution of small amounts of marihuana for no remuneration, or insignificant remuneration, no longer be an offense."

Those recommendations were especially striking in light of the commission's composition. Most of its members had been appointed by President Richard Nixon, a law-and-order Republican, and it was chaired by Raymond Shafer, a Republican who had just completed a term as Pennsylvania's governor.

That decade, nearly a dozen states, beginning with Oregon in 1973, took the commission's advice, typically changing low-level possession from a criminal offense to a civil violation punishable by a modest fine. President Jimmy Carter endorsed decriminalization in 1977, when he told Congress that "penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself."

That wave of reform was followed by an anti-drug backlash in which Carter's successor, Ronald Reagan, figured prominently. So did Biden. "We have to hold every drug user accountable," he declared in a 1989 speech that faulted Republicans for not being tough enough on the issue, because "if there were no drug users, there would be no appetite for drugs, and there would be no market for them."

Biden now presents himself as a recovering drug warrior who has seen the error of his ways. During his 2020 campaign, he conceded that the scientifically baseless penal distinction between crack and cocaine powder, which resulted in glaring racial disparities, was "a big mistake." He switched from pushing mandatory minimums to advocating their elimination. And he said the federal government should "leave decisions regarding legalization for recreational use up to the states."

That last promise cannot be fulfilled as long as federal prohibition remains in place. Until marijuana is descheduled, state-licensed marijuana businesses will remain criminal enterprises under federal law, which makes it hard for them to obtain financial services and exposes them to the risk of prosecution and civil forfeiture. For businesses that serve the recreational market, prosecutorial discretion is the only protection against that risk.

Reclassifying marijuana as a Schedule III drug, another move that Biden touted last night, would leave federal prohibition essentially untouched. It would not decriminalize the cannabis industry or remove the various legal disabilities triggered by participation in that industry or by cannabis consumption, such as the loss of Second Amendment rights and ineligibility for admission, legal residence, and citizenship under immigration law. Rescheduling would not even make marijuana legally available as a prescription medicine, which would require approval of specific products by the Food and Drug Administration.

Until marijuana is "removed from the Controlled Substances Act entirely," Packer notes, "federal criminalization will continue to ruin countless lives, create barriers to jobs, housing, food, and education and disproportionately harm Black and Brown communities. If Biden is truly committed to ending the failures of federal marijuana criminalization he should: expand pardons and commutations beyond simple possession cases; end marijuana-based deportations of noncitizens; direct his administration to revise policies related to marijuana, including access to housing and food assistance programs; and call on the DEA and Congress to federally decriminalize marijuana by descheduling it."

Biden has stubbornly resisted federal legalization, saying he is worried that marijuana might be a "gateway" to other, more dangerous drugs—an argument that pot prohibitionists have been deploying since at least the early 1950s. That position flies in the face of public opinion. According to the latest Gallup poll, 70 percent of Americans, including 87 percent of Democrats, favor legalization.

Support for repealing pot prohibition is especially strong among younger voters, whose behavior in November could be crucial to Biden's reelection. It is therefore not surprising that his campaign is trying to boost turnout among those voters by bragging that Biden "changed federal marijuana policy" (which so far is not accurate) because "nobody should have to go to jail just for smoking weed," which almost never happens under current law and won't happen less often as a result of Biden's pardons or rescheduling.

Even if Biden had the power to unilaterally decriminalize low-level marijuana possession, that step would not address today's central cannabis issue, which is the conflict between federal law and the laws of the 38 states that have legalized marijuana for medical use, including two dozen, accounting for most of the U.S. population, that also allow recreational use. Instead of addressing that issue, which is what an overwhelming majority of his supporters would like him to do, Biden is acting as if it is still 1972.