The president added that regulations that limit the trafficking, marketing and sales to minors shouldn’t change but that states should follow the administration’s lead because the vast majority of people incarcerated for marijuana possession in the U.S. are convicted under state or local laws.
“The President has been clear that marijuana laws are not working,” said a senior administration official. “The president has been considering his options and he is now taking executive action.”
The move, pushed for by advocates for months, brings marijuana policy to the fore just weeks before the midterm elections, underscoring just how much the politics of the issue have changed in a short period of time. Polling consistently shows that roughly two-thirds of Americans support marijuana legalization. But despite the popularity of legalization, fewer than one in five 2022 primary candidates mentioned cannabis reform on their website or on social media, according to an analysis by the Brookings Institution.
The practical impact, at least immediately, may be limited. Most people in federal prison for cannabis offenses are not in prison for minor, nonviolent offenses — so the number of individuals affected by this order will be in the thousands, according to the White House.
The move, nevertheless, is remarkable for Biden, a 79-year-old president who had written some of the tough-on-crime drug laws that advocates note led to current incarceration rates. Biden was the only Democratic presidential candidate in 2020 who did not support federal descheduling, which would essentially make marijuana legal at the federal level. The administration had also said Biden wants to reschedule cannabis to a Schedule II drug — which would make it easier to study — legalize medical marijuana and decriminalize minor possession. All of these positions legally conflicted with each other.
Currently, 37 states and the District of Columbia have legalized medical marijuana, and 19 states have legal adult-use marijuana. Five states are voting on recreational cannabis legalization in the 2022 midterms: Missouri, Arkansas, North and South Dakota, and Maryland.
Earlier this year, Senate Majority Leader Chuck Schumer introduced a bill to deschedule cannabis and expunge some federal records. However, that bill does not currently have the votes in the Senate to pass. The House has twice passed legislation in recent years that would eliminate federal marijuana penalties, but with little Republican support. In addition, a House bill, introduced by Reps. Alexandria Ocasio-Cortez (D-N.Y.) and Dave Joyce (R-Ohio) would set aside grant funding for states that want to expunge cannabis-related records.
“Members of Congress have been working on this issue with one significant bill passing the House. That effort has stalled and we are almost at the end of this Congress,” a senior administration official said.
Biden’s announcement on Thursday appeared to catch much of Washington by surprise, with Democratic congressional aides telling POLITICO the rollout was not closely coordinated with lawmakers ahead of time.
Rep. Barbara Lee (D-Calif.), one of the co-chairs of the Congressional Cannabis Caucus, has brought descheduling up with the administration in the past and did receive a call from the White House prior to the announcement. Fellow co-chair Rep. Earl Blumenauer (D-Ore.) also received a call ahead of the announcement.
In addition, Democratic Pennsylvania Senate candidate John Fetterman got advance notice from the White House that Biden was going to pardon marijuana offenses and review how it’s scheduled, a person familiar with the conversation said. The Pennsylvania lieutenant governor, long a proponent of legalizing weed, talked with Biden for 20 minutes last month in Pittsburgh, during which Fetterman urged him to deschedule marijuana.
The review process Biden has outlined through HHS and the DOJ won’t necessarily result in the descheduling of cannabis. It could simply move marijuana to a lower category on the Controlled Substances Act — something that advocates have pointed out could complicate medical and recreational marijuana programs in already-legal states.
“Keeping marijuana on the federal drug schedule will mean people will continue to face criminal charges for marijuana,” the Drug Policy Alliance, which advocates for the legalization of all drugs, said in a statement. “It also means that research will continue to be inhibited and state-level markets will be at odds with federal law.”
Even Biden-allied lawmakers encouraged him to go further. “A review by HHS of how cannabis is scheduled is welcome, but those of us who have been advocating for reform, we already know that a comprehensive federal solution is needed,” Sen. Ron Wyden (D-Ore.) said in a statement on Thursday.
In an apparent nod to that vein of criticism, DOJ promised swift action on the executive order.
“The Justice Department will expeditiously administer the President’s proclamation, which pardons individuals who engaged in simple possession of marijuana, restoring political, civil, and other rights to those convicted of that offense,” the department said in a statement. “In coming days, the Office of the Pardon Attorney will begin implementing a process to provide impacted individuals with certificates of pardon.”
There have long been big racial disparities in enforcement of marijuana laws. Black people are nearly four times more likely than whites to be arrested for marijuana possession, despite both groups using the drug at roughly equal rates, according to a 2020 study by the American Civil Liberties Union.
The legal cannabis industry is projected to hit $32 billion in sales this year, according to New Frontier Data, with revenues expected to reach $63 billion by 2028.
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