Members Only | October 12, 2022 | Reading Time: 4 minutes

Pot pardons aren’t meaningless, but they aren’t enough either

The racist consequences of the “war on drugs” are still with us.

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Last week, President Biden announced he would pardon people convicted of simple marijuana possession. This mass pardon could help over 6,000 people but it’s still a drop in the bucket in our fight to end the criminalization of marijuana use and the outsized harm to Black and brown communities from that criminalization. 

This mass pardon doesn’t free one person from prison, because there are currently no federal prisoners in jail for simple possession. 

However, the pardons aren’t meaningless. 

People who have felony convictions on their records face obstacles in finding jobs, getting housing, receiving loans, voting or serving on juries. Despite the conviction being from a federal charge, many of these rights are dependent on state law. In some states a federal felony conviction is an obstacle to voting while in others, it isn’t. 

Pardoning 6,500 people helps those 6,500 people, but without additional steps, these pardons mean nothing to the larger issue. The executive order was clear that it didn’t apply to future charges and certainly doesn’t address the longstanding harm to Black and brown communities from the decades long criminalization of marijuana.

Prison time isn’t the only harmful consequence to a felony conviction (state or federal). In states that have legalized marijuana, you can only sell it legally or open a dispensary if you don’t have a previous felony marijuana conviction. Even without jail time, felony convictions can have disastrous effects on people’s lives. Pardoning over 6,000 people will remove major obstacles to those people fully participating in society.

So it’s very clear the mass pardon is positive no matter how you look at it – but it’s nowhere near enough. Pardoning 6,500 people helps those 6,500 people, but without additional steps these pardons mean nothing to the larger issue. The executive order was clear that it didn’t apply to future charges and certainly doesn’t address the longstanding harm to Black and brown communities from the decades long criminalization of marijuana. 

In order to address future charges, marijuana needs to be reclassified. Biden ordered HHS Secretary Becerra and Attorney General Garland to speed up their review of marijuana classification but it’s a complicated process and could still take a significant amount of time. Even reclassifying marijuana as a schedule 2 narcotic (a substance that’s harmful but with medicinal purposes) could still result in significant criminalization particularly for marginalized communities without access to legitimate medicalized use. 

Rescheduling marijuana as a schedule 2 narcotic would open up avenues for research and likely provide the option for prescribed marijuana, but that does not go nearly far enough in actually decriminalizing the substance.

While the majority of marijuana felony convictions are at the state level, federal charges disproportionately target indigenous people who live on reservations. Arrest for marijuana possession in the District of Columbia, a majority Black city, can also result in federal charges. 

Undocumented immigrants are also more likely to face federal charges for marijuana possession. Unfortunately, the pardon does not address marijuana convictions for undocumented immigrants. Why would a non-citizen face punishment for something that citizens aren’t punished for?

If the pardon is supposed to be a first step in decriminalization (which I think it clearly is) then there must be significant movement to pardon people not only of simple possession but also of possession with intent to distribute. 

States across the country are legalizing marijuana distribution but rhetoric often focuses solely on the criminalization of possession. White people with resources are beginning to open dispensaries while Black people remain in jail for the same actions. Charging someone with intent to distribute is often based on the quantity of marijuana one has. Intent is assumed if one possesses too much.

Our focus cannot solely be on decriminalizing marijuana but must also be on actually repairing the significant harm done to Brown and black communities. The war on drugs and mass incarceration were policies that came directly out of the civil rights movement as a backlash to ending segregation and Jim Crow. Before the civil rights movement, Black people were criminalized with blatantly racist laws criminalizing loitering or not having a job. After, criminalization had to become race neutral in the law and only racist in the application. 

The answer was the war on drugs and the extreme disparate treatment of Black and white drug users. 

During Jim Crow, criminalization of Black people was used to deny voting rights, jobs, jury participation and fulfill labor needs after the end of slavery. The war on drugs similarly has denied voting rights, jury participation, jobs, government benefits and more to those with felony drug convictions. Arguably prisoners are still fulfilling labor needs through prison labor programs.

To address this harm, we need to do a lot more than pardon those with felony possession charges. People with possession or possession with intent to distribute must all be pardoned. 

Marijuana must be reclassified in such a way that it is not deemed harmful and so it is legal. Those who have been convicted of possession must have access to licenses for dispensaries. 

US Senator Cory Booker of New Jersey has been working on this issue for years and has proposed expunging the records of non-violent marijuana offenses (presumably including those convicted of intent to distribute). His proposal also includes “a fund to reinvest in the communities that were hurt by the war on drugs and provide restorative justice to communities of color.” 

President Biden’s pardon will materially affect people’s lives for the better. A major obstacle to voting, employment, housing, government benefits and more will be removed. However, unless it is followed by continued action on decriminalization and redress to harmed communities it will only help those 6,500 people. 

The language of Biden’s executive order suggests this is meant as a first step so we have reason to hope he will address the larger issues.

We can only hope he follows through.

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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