Biden’s Cannabis Pardons Are One Small Step to Ending the “War on Drugs.” Much More Is Needed.

Nazish Dholakia Senior Writer
Oct 13, 2022

Last week, President Biden pardoned the thousands of people convicted under federal law of simple cannabis possession, a move that is a small step in the right direction and one advocates have said is “incredibly long overdue.”

But Biden’s executive action only brings us marginally closer to ending the “War on Drugs” that has embroiled this country for decades—policy choices that have harmed millions, particularly Black people and other people of color, who have been targeted, surveilled, and punished more severely than white people. It is also a “war” that is at odds with public sentiment: the majority of people in the United States support cannabis legalization and the decriminalization of drug possession.

The administration said that more than 6,500 people were convicted of simple cannabis possession under federal law from 1992 to 2021, and thousands more have been convicted under Washington, DC, code, which also falls under federal jurisdiction. Nobody is currently incarcerated in federal prison solely for simple possession. The president’s pardon removes barriers imposed by law on people with a conviction history, such as restrictions on occupational licensing, housing, and employment—but for a relatively small group.

That’s because most convictions for simple cannabis possession occur under state and local laws, not federal law. To put things in perspective, out of 350,149 cannabis arrests in 2019, about 91 percent were for possession. In 2020, there were more than 1.1 million arrests for drug law violations, and most of those—more than 1 million—were for personal possession alone.

“There is no reason that people should be saddled with a criminal record . . . for something that is already legal in 19 states and DC and decriminalized in 31 states,” said Kassandra Frederique, executive director of the Drug Policy Alliance.

It’s also important to note that presidential pardons do not serve as record expungement, meaning they do not actually remove the conviction from a person’s record. Instead, both the conviction and the pardon are supposed to appear there. The administration announced that it will soon issue certificates as proof to people who have been pardoned.

“A lot of this is going to depend on how it’s implemented. How easily do these pardons show up for people who are checking records? That’s where the proof will be in the pudding,” said Marta Nelson, director of government strategy at the Vera Institute of Justice.

Biden’s decision also leaves many people out. By pardoning only those convicted of simple possession, some advocates say he hasn’t gone far enough.

“He seems to be saying it’s not blameworthy to use marijuana, but it is still blameworthy to sell marijuana,” Nelson said. “You can’t use marijuana unless someone is selling it to you.”

The pardons apply only to people with past convictions under federal law, so someone could still be charged and convicted for simple marijuana possession at the federal level going forward. People who are not citizens or legal permanent residents have been excluded, so they could still be detained or deported for simple marijuana possession.

The president has asked the U.S. Department of Health and Human Services and the U.S. Department of Justice to review whether cannabis should still be in the same legal category as drugs like heroin and LSD. But without descheduling and decriminalization, people could continue to face federal criminal charges for cannabis possession.

“It also means that research will continue to be inhibited, and states that have legalized marijuana will still be at odds with federal law,” said Maritza Perez, director of federal affairs at the Drug Policy Alliance.

In November, people in five states—Arkansas, Maryland, Missouri, North Dakota, and South Dakota—and many more municipalities will vote on cannabis legalization measures. It’s up to governors to follow Biden’s lead and pardon cannabis possession offenses at the state level, as Biden urged. Congress should also pass legislation to repair the harms of cannabis criminalization. And our communities should invest in treatment and addiction services instead of arrest and incarceration.

The War on Drugs was a discriminatory effort from its outset. It is one example of how our proclivity to overcriminalize has led to the incarceration of millions, destabilizing their lives and their families’ lives and burdening them with overly punitive consequences that can last a lifetime. Biden’s order is a small step forward, but one that hopefully sets the stage for further local, state, and federal action.