“It’s a really major change of pace for him. [on cannabis policy]”said David Holland, a lawyer at Prince Lobel Tye in New York who worked on clemency petitions for federal marijuana prisoners and a petition to move cannabis to a less restrictive category. But “it’s so small in the world of cannabis restorative justice.”
Here’s a look at what Biden’s executive actions do — and don’t — and what it could mean for America’s booming, multi-billion dollar marijuana markets.
The evolution of Biden’s drug policy
Biden has long portrayed himself as a drug warrior during his time in the Senate. In 1989 he criticized George HW Bush’s speech drug plan as ‘not tough enough.”
He was then instrumental in the Crime Bill of 1994 which helped to dramatically increase incarceration rates for drug offenses in America. It included sentencing provisions like the three-strike rule that state governments have also adopted, which has had a significant impact on drug incarceration rates, including for marijuana offenses.
This story followed Biden in his presidential campaign, which the main Democratic opponents hung as an indication that it was out of step with the American public.
During the campaign, Biden has said he supports moving marijuana from Schedule I to Schedule II of the Controlled Substances Act. But he also said he supported decriminalizing the use of marijuana, which advocates expressed confusion over – given that cocaine is a Schedule II substance and is still highly criminalized .
The Biden administration also infuriated cannabis advocates last year when the Daily Beast reported that “dozens” of young White House staffers had been suspended, asked to resign or placed in a remote work program after admitting to having previously used marijuana.
Who gets a pardon?
While presidents have the power to grant pardons and clemency through the US Constitution, the type of general pardon used by Biden is not very common.
President Gerald Ford issued a general amnesty in 1974 deserters from the Vietnam War. And in 1977, President Jimmy Carter granted unconditional pardon to hundreds of thousands rebels of the Vietnam War.
Biden’s action is limited to those federally convicted of simple possession of marijuana, which a senior administration official said will affect about 6,500 people.
But the vast majority of people who have been negatively affected by federal marijuana enforcement are those who have been convicted of more serious crimes, such as trafficking and distribution. Although Biden said no one should be locked up for using marijuana, there are few – if any – people currently incarcerated solely on a federal marijuana possession charge.
The vast majority of people locked up for possession of marijuana have been convicted at the state level. Biden’s order also calls on governors to issue pardons for state marijuana possession offenses, but the president has no power to compel them to act. Many states that have legalized marijuana have already taken steps to remove past convictions for marijuana-related crimes. governor of illinois JB Pritzkerfor example, issued pardons for over 11,000 marijuana-related convictions end of 2019.
What impact would Biden’s action have on those receiving pardons?
People with a criminal record as often experience discrimination when it comes to accessing housing, employment or educational opportunities. “This pardon will help mitigate these collateral consequences,” the senior administration official said.
But supporters wonder if that’s true.
“A pardon still leaves everyone [criminal] records intact,” said Craig Cesal, who served 19 years in federal prison for marijuana-related crimes and now defends others with cannabis convictions. He was pardoned last year.
Their record could further hurt job opportunities, Cesal said, such as getting clearance to transport hazardous materials with a commercial driver’s license.
Biden led the attorney general Merrick Garland to develop an administrative process to issue pardon certificates to eligible individuals, according to the senior official.
But it’s not exactly an easy lift. There is no central database of federal offenders. State and local prosecutors have also struggled to try to automatically erase cannabis-related criminal records.
Can Biden unilaterally relax federal restrictions on marijuana?
No. Biden asked the Attorney General and the Secretary of Health and Human Services Xavier Becerra to begin the process of reviewing the status of marijuana under federal law.
The federal government could decriminalize marijuana in two other ways. Congress could pass such legislation since it created the Controlled Substances Act, where marijuana is classified as Schedule I, defined as having no medical use and high potential for abuse. Heroin and LSD are also Schedule I drugs. In addition, a citizen can petition the Drug Enforcement Administration to review marijuana scheduling.
While Biden can ask the attorney general to begin the review, his power to dictate the details is severely limited. Now the Food and Drug Administration and the DEA will decide how to proceed.
What is the process for rescheduling or deprogramming?
When agency heads initiate the review process, the task is delegated to the DEA and FDA.
The role of the FDA is to go through a scientific and medical analysis and make a recommendation on programming to the DEA. The agency’s determination is based on three factors: a drug’s currently accepted medical use, abuse potential and addictive tendencies, Shane Pennington explained, lawyer at Vicente Sederberg who has been challenging the DEA’s marijuana classification for several years.
While alcohol and tobacco certainly have the potential for abuse, these drugs enjoy statutory exemptions from the CSA.
“On scientific and medical issues — the FDA’s view trumps the DEA’s,” Pennington said.
But the DEA has the discretion to override the FDA’s recommendation in certain situations, including if it believes a planning decision might violate international drug treaties.
What happens next?
If the DEA and FDA decide there is enough scientific evidence to warrant a change in the federal status of marijuana, legalization advocates fear the drug could be moved to Schedule II or Schedule III, instead. instead of being removed entirely from the CSA.
This could potentially jeopardize existing state-regulated marijuana markets, as it would place marijuana within the scope of FDA drug regulations. Existing Schedule II drugs include cocaine, fentanyl and methamphetamine, while Schedule III drugs include ketamine and anabolic steroids.
“Biden is trying to signal what is going to be a paradigm shift and a policy shift in the White House over the next two years,” Holland said.