"We have pardoned tens of thousands of people with federal convictions for simple marijuana possession," Vice President Kamala Harris bragged on Thursday. It was not the first time she had offered that estimate, which she also cited during an appearance in South Carolina last February and at a "roundtable conversation about marijuana reform" the following month.
Where did Harris get that number? From thin air, it seems. "While Harris said 'tens of thousands' have been pardoned under President Joe Biden's October 2022 and December 2023 clemency proclamations," Marijuana Momentnoted in February, "the Justice Department estimates that roughly 13,000 people have been granted relief under the executive action." And only a tiny percentage of those people have bothered (or managed) to obtain evidence of their pardons: This week the Justice Department reported that "the Office of the Pardon Attorney has issued 205 certificates of pardon" to people covered by Biden's proclamations.
In October 2022, President Joe Biden announced pardons for people who had possessed marijuana in violation of 21 USC 844 or Section 48–904.01(d)(1) of the D.C. Code. That proclamation applied to "all current United States citizens and lawful permanent residents" who had "committed the offense of simple possession of marijuana" on or before October 6.
According to a count by the U.S. Sentencing Commission (USSC), about 7,500 citizens and 1,200 "resident/legal alien offenders" (only some of whom would be eligible for pardons) were convicted of marijuana possession under 21 USC 844 from FY 1992 through FY 2021. Those numbers include some people who also were convicted of other offenses.
That count did not include D.C. Code violations. "We estimate that over 6,500 people with prior federal convictions for simple possession of marijuana and thousands of such convictions under D.C. law could benefit from this relief," a White House official said during a press background call on the day Biden announced the pardons.
In December 2023, Biden expanded the pardons to include people who had violated either of two additional laws covering attempted possession (21 USC 846 and Section 48-904.09 of the D.C. Code) or federal regulations prohibiting marijuana possession in specific locations such as "Federal properties or installations." That proclamation also extended the cutoff for violations by another year or so. At the time, Harris said the additional pardons would help "thousands of people."
So how did Harris arrive at "tens of thousands"? Even if you include people who committed these offenses prior to FY 1992, there would have to be about 10,000 of them who are still alive to justify Harris' estimate.
The USSC found fewer than 9,000 such cases over three decades, and Biden's expansion may have added a few thousand more. So going back a couple more decades would not do the trick, even if you assume that the annual numbers are about the same over time, which we know is not true: The USSC count included years when the number of federal sentences for simple marijuana possession rose and fell precipitously. Overall, the annual number of marijuana arrests (the vast majority under state law) was much lower in the 1960s and '70s than it was in the period covered by the USSC analysis. And if you go back that far, you are including many people busted for possession who are no longer with us.*
Harris' exaggeration reflects the Biden administration's general tendency to fib about the extent of its "marijuana reform" while trying to motivate younger voters whose turnout could be crucial to the president's reelection. In his State of the Union address on March 8, for example, Biden falsely claimed that he was "expunging thousands of convictions."
Biden's marijuana pardons do not entail expungement because it is not possible under current federal law. As the Justice Department notes, a pardon "does not signify innocence or expunge the conviction." So it is also not true that Biden's clemency "lifts barriers to housing, employment, and educational opportunities for thousands of people with prior convictions under federal and D.C. law for simple marijuana possession," as inaptly named "fact sheets" from the White House claimed in February 2023, September 2023, and April 2024. Likewise for Biden's recent claim that he is "lift[ing] barriers to housing, employment, small business loans, and so much more for tens of thousands of Americans," which combines two kinds of hyperbole.
During his 2020 campaign, Biden promised to "decriminalize the use of cannabis." But his pardons did not accomplish that either. Without new legislation, simple possession will remain a federal offense punishable by a minimum $1,000 fine and up to a year in jail. Biden and Harris have muddied that point by saying his pardons are based on the premise that "no one should be jailed for simply using" marijuana, as Biden said in March, or that "no one should go to jail for smoking weed," as Harris put it on Thursday.
Those formulations also imply that low-level marijuana arrests commonly result in incarceration, which is not true. The USSC reported that "no offenders" covered by Biden's October 2022 proclamation were in federal Bureau of Prisons custody as of the previous January. And since those pardons excluded people who had been convicted of growing or distributing marijuana, they did not free a single federal prisoner.
Biden also has misrepresented the significance of moving marijuana from Schedule I to Schedule III of the Controlled Substances Act, which he describes as a "monumental" accomplishment. That change, which the Drug Enforcement Administration formally proposed this week, would facilitate medical research and allow state-licensed marijuana suppliers to deduct standard business expenses when they file their federal tax returns—a big financial benefit to the cannabis industry. But it otherwise would leave federal pot prohibition essentially unchanged, which is how Biden wants it.
For a longtime drug warrior who supposedly has seen the error of his ways but nevertheless opposes marijuana legalization, appealing to voters who overwhelmingly favor it is a tough sell. As Harris' pardon prevarication illustrates, that pitch requires obscuring the truth in ways small and large.
*Addendum: "I share your concerns about hyperbole around the number of pardons (and all the other marijuana reform hype)," Douglas Berman, a sentencing expert at the Ohio State University's Moritz College of Law, says in an email. He nevertheless suggests that "motivated math" could get Harris to a bit more than 20,000 simple possession convictions. That calculation would hinge on including D.C. arrests from the mid-1970s on and assuming about 15 percent resulted in convictions, which Berman says is "reasonable for a mid-sized city." But "this VP-friendly accounting," he notes, "is entirely back of the envelope," which he sees as "a big problem in this space." And Harris said she was talking about "federal convictions for simple marijuana possession," which implies convictions under 21 USC 844, 21 USC 846, and location-specific federal regulations.
[This post has been updated with additional observations about the impact of Biden's pardons.]
That there are government officials who politicize the law is about as foundational to the discourse as any complaint I can think of. The criticism is sometimes quite fair. And for the latest example of a soft-on-crime politician flouting law and order, we can look to Texas Gov. Greg Abbott.
Abbott, of course, is no self-styled progressive. But his recent decision to pardon Daniel Perry, who was convicted last year of murdering Garrett Foster, channels the spirit of the progressive prosecutors he criticizes for allegedly refashioning the law to suit their ideological preferences. He just has different targets.
The governor, who last year urged the Texas Board of Pardons and Paroles to recommend a pardon for Perry, doesn't see it that way. "Texas has one of the strongest 'Stand Your Ground' laws of self-defense that cannot be nullified by a jury or a progressive District Attorney," he wrote in a statement yesterday, approving the pardon after the board officially obliged his request. (It's worth noting that the board, whose members are appointed by the governor, circumvented its own requirement that "evidence of actual innocence from at least two trial officials, or the findings of fact and conclusions of law from the district judge indicating actual innocence" be submitted to even consider such a pardon.)
It is absolutely true that the right to self-defense is vital. And to argue that Perry—who, prior to killing Foster at a 2020 Black Lives Matter protest, wrote that he wanted to "shoot the [protesters] in the front and push the pedal to the metal"—acted in self-defense is to make a total mockery of that right and those who've had to exercise it.
It is also true that many district attorneys, some of them so-called "progressive" prosecutors, appear to disdain that right. There are the cases across New York City I've covered, for example, where prosecutors are unconscionably seeking lengthy prison terms for people who acted in self-defense but had the audacity to do so with an unlicensed gun. That includes the case of Charles Foehner, an elderly man who shot a mugger in Queens, after which law enforcement brought so many weapons charges against him that Foehner would go to prison for life if convicted on all. That was in June 2023. In November, LaShawn Craig of Brooklyn shot a masked man who'd entered his apartment. Though prosecutors concede the shooting was in self-defense, they also charged him with several weapons offenses, including criminal possession of a weapon, a violent felony.
And then, most famously, there was Kyle Rittenhouse, whose 2021 prosecution for murder polarized much of the nation, despite that, if you knew the facts, it was an obvious example of self-defense—something I made very clear at the time.
There are some interesting parallels between Rittenhouse's case and Perry's case that are hard to ignore. Both men used their guns at protests against police brutality, many of which popped up across the U.S. in the summer of 2020. The shootings happened exactly a month apart. Then their stories diverge considerably, ending in an acquittal and a conviction, because the way they used their firearms was quite different, despite the culture war backdrop being the same. Both of these things can be true.
In July 2020, Perry ran a red light and drove into a crowd of protesters. That in and of itself, of course, is not enough to deduce that he was looking for a fight. His own statements prior to doing so, however, add a great deal of helpful context and show his frame of mind at the time. "I might have to kill a few people on my way to work they are rioting outside my apartment complex," he wrote on social media on May 31, 2020. Also in May, he threatened to a friend that he "might go to Dallas to shoot looters." And then in mid-June, he sent that message about going to a protest, "shoot[ing] the ones in the front," and then careening his car through the hubbub.
This was part of a pattern. Austin police detective William Bursley testified, for instance, that Perry searched on Safari for "protesters in Seattle gets shot," "riot shootouts," and "protests in Dallas live." It is not hard to connect the dots between his searches and messages.
So what about that stand-your-ground defense Abbott alleges the jury nullified? Core to Perry's case and trial was whether he reasonably feared for his life that July evening. Foster indeed had a rifle on him—because open carry is legal in Texas. The Second Amendment does not solely exist for people with conservative views. The big question then: Was Foster pointing the gun at Perry when he approached his vehicle? For the answer, we can go to Perry himself, who told law enforcement that he was not. "I believe he was going to aim at me," he said. "I didn't want to give him a chance to aim at me." But that is not a self-defense justification, as Perry cannot claim clairvoyance.
That the jury reached the conclusion they did is not a mystery, nor is it an outrage. What is outrageous, however, is that a governor who claims to care about law and order has made clear that his support for crime victims is at least in part conditional on having the "right" politics.
President Joe Biden describes the Drug Enforcement Administration's proposal to reclassify marijuana under federal law as "monumental." How so? "It's an important move toward reversing longstanding inequities," Biden claims in a video posted on Thursday. "Today's announcement builds on the work we've already done to pardon a record number of federal offenses for simple possession of marijuana, and it adds to the action we've taken to lift barriers to housing, employment, small business loans, and so much more for tens of thousands of Americans."
Even allowing for 60 days of public comment and review of a final rule by Congress and the Office of Management and Budget, marijuana's rescheduling could be finalized before the presidential election. And even if it does not take effect before then, Biden is hoping the move will help motivate younger voters whose turnout could be crucial to his re-election. But he also had better hope those voters are not paying much attention to the practical consequences of rescheduling marijuana, which are much more modest than his rhetoric implies.
"Look, folks," Biden says in the video, "no one should be in jail merely for using or possessing marijuana. Period. Far too many lives have been upended because of [our] failed approach to marijuana, and I'm committed to righting those wrongs." Yet rescheduling marijuana will not decriminalize marijuana use, even for medical purposes. It will not legalize state-licensed marijuana businesses or resolve the growing conflict between federal prohibition and state laws that authorize those businesses. It will not stop the war on weed or do much to ameliorate the injustice it inflicts.
In accordance with a recommendation that the Department of Health and Human Services (HHS) made last August, the DEA plans to move marijuana from Schedule I of the Controlled Substances Act, a list of completely prohibited drugs, to Schedule III, which includes prescription medications such as ketamine, Tylenol with codeine, and anabolic steroids. Schedule I supposedly is reserved for drugs with a high abuse potential and no accepted medical applications that cannot be used safely even under a doctor's supervision.
When Biden directed HHS to review marijuana's legal status in October 2022, he noted that "we classify marijuana at the same level as heroin" and treat it as "more serious than fentanyl," which "makes no sense." On Thursday, he likewise noted that "marijuana has a higher-level classification than fentanyl and methamphetamine—the two drugs driving America's overdose epidemic."
Biden is right that marijuana's current classification makes no sense, as critics have been pointing out for half a century and as HHS belatedly acknowledged in explaining the rationale for rescheduling. HHS found "credible scientific support" for marijuana's use in the treatment of pain, nausea and vomiting, and "anorexia related to a medical condition." It also noted that "the risks to the public health posed by marijuana are low compared to other drugs of abuse," such as heroin (Schedule I), cocaine (Schedule II), benzodiazepines like Valium and Xanax (Schedule IV), and alcohol (unscheduled).
Although "abuse of marijuana produces clear evidence of harmful consequences, including substance use disorder," HHS said, they are "less common and less harmful" than the negative consequences associated with other drugs. It concluded that "the vast majority of individuals who use marijuana are doing so in a manner that does not lead to dangerous outcomes to themselves or others."
According to the DEA's proposed rule, Attorney General Merrick Garland, who holds the ultimate authority to reschedule drugs under the CSA, "concurs with HHS's conclusion" that marijuana has currently accepted medical uses. Garland also "concurs with" the assessment that "marijuana has a potential for abuse less than the drugs or other substances in schedules I and II." And he agrees that "the abuse of marijuana may lead to moderate or low physical dependence, depending on frequency and degree of marijuana exposure."
Those conclusions are "monumental" in the sense that HHS, the DEA, and the Justice Department are finally acknowledging what most Americans already knew. Abandoning the pretense that marijuana meets the criteria for Schedule I represents progress in that sense, although it comes after decades of legal wrangling in which HHS and the DEA took the opposite position, at a time when 38 states have legalized medical use of marijuana, two dozen have taken the further step of legalizing recreational use, and an overwhelming majority of Americans oppose pot prohibition.
In practical terms, the two main benefits of moving marijuana to Schedule III are fewer regulatory barriers to medical research and a financial boon to state-licensed cannabis suppliers, who will no longer be barred from deducting standard business expenses when they file their federal tax returns. But when Biden calls it "an important move toward reversing longstanding inequities" and links it to "righting [the] wrongs" suffered by cannabis consumers, he is promising more than rescheduling can possibly deliver.
Although Biden promised to "decriminalize the use of cannabis" during his 2020 campaign, rescheduling does not do that. Nor do the pardons he touts. Despite those two moves, low-level marijuana possession will remain a federal offense punishable by a minimum $1,000 fine and up to a year in jail. Only Congress can change that. Biden has invested little, if any, effort in urging it to do so, and he opposes outright federal legalization based on "gateway drug" concerns that pot prohibitionists have been voicing since the 1950s.
Neither rescheduling nor pardons will remove the unfair "barriers" that Biden decries. Although Biden claims he is "expunging thousands of convictions," that is not true, since pardons do not entail expungement. Nor do pardons eliminate the various legal disabilities associated with marijuana convictions, cannabis consumption, or participation in the cannabis industry, which include loss of Second Amendment rights (a policy that Biden defends) and ineligibility for admission, legal residence, and citizenship under immigration law.
As his pardons reflect, Biden's concern about unjust incarceration is curiously limited. Because those pardons did not apply to people convicted of growing or selling marijuana, they did not free a single federal prisoner. Neither will rescheduling.
With marijuana in Schedule III, state-licensed marijuana businesses will remain criminal enterprises under federal law, albeit subject to less draconian penalties. "If marijuana is transferred into schedule III," the DEA notes, "the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA."
For that reason, rescheduling is unlikely to reassure financial institutions that are leery of serving marijuana businesses because it could expose them to devastating criminal, civil, and regulatory penalties. "Because marijuana would remain a controlled substance under the CSA," the law firm Debevoise & Plimpton notes, "its rescheduling would not immediately impact the potential legal risks to financial institutions (and other parties) considering whether to provide services to marijuana businesses."
If marijuana is listed along with prescription drugs, doesn't that at least mean that it can legally be used as a medicine? No, because doctors can prescribe only specific products that have been approved by the Food and Drug Administration (FDA). Unless and until new cannabis-based medicines pass muster with the FDA, they will not be legal for doctors to prescribe or patients to use.
These points are easily overlooked in the hoopla surrounding the rescheduling announcement. But the limitations of Biden's "monumental" policy shift are clear from the reactions of activists and the cannabis industry.
"This recommendation validates the experiences of tens of millions of Americans, as well as tens of thousands of physicians, who have long recognized that cannabis possesses legitimate medical utility," said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, which first urged the DEA to reschedule marijuana back in 1972. "But it still falls well short of the changes necessary to bring federal marijuana policy into the 21st century. Specifically, the proposed change fails to harmonize federal marijuana policy with the cannabis laws of most U.S. states, particularly the 24 states that have legalized its use and sale to adults."
The review from the American Civil Liberties Union (ACLU) was similarly mixed. "President Biden's decision to reschedule marijuana is the most significant step any American president has taken to address the harms of the war on marijuana," Cynthia W. Roseberry, director of policy and government affairs at the ACLU's Justice Division, said in an emailed statement. "While it is an incredibly encouraging step in the right direction, the rescheduling does not end criminal penalties for marijuana or help the people currently serving sentences for marijuana offenses."
John Mueller, CEO of the Greenlight dispensary chain, likewise noted what rescheduling will not do. "This is a monumental moment," he said in an emailed press release, "but we still have a long way to go to rectify the injustices of the War on Drugs. The recent strides in cannabis rescheduling mark a significant departure from a failed 50-year prohibition policy. We must continue this momentum by calling on our state and federal leaders to prioritize the release of individuals incarcerated for cannabis-related offenses. This is not just about acknowledging the legitimacy of the cannabis industry, but also about rectifying the disproportionate impact of outdated policies on marginalized communities.…It's time to right the wrongs of the past and embrace progress wholeheartedly."
Aaron Smith, CEO of the National Cannabis Industry Association, had a similar take. "On behalf of thousands of legal businesses operating across the country, we commend President Biden for taking this important first step toward a more rational marijuana policy," he said. "Now it's time for Congress to enact legislation that would protect our industry, uphold public safety, and advance the will of the voters who overwhelmingly support making cannabis legal for adults. Rescheduling alone does not fix our nation's state and federal cannabis policy conflict. Only Congress can enact the legislation needed to fully respect the states and advance the will of the vast majority of voters who support legal cannabis."
Delay tactics: Former President Donald Trump is currently dealing with the hush-money/falsifying business records case before him, in which he may be convicted and serve some time in prison. It is also not impossible that he will serve some amount of time in jail beforehand if he violates the judge's gag order again.
But the other three criminal cases before him look increasingly like they will be delayed until after the presidential election in November, in part due to the fact that Trump's legal team has been successfully pushing them off until later.
"If Trump wins, he could appoint Justice Department officials to make the two federal cases against him go away," notesAxios, referring to the cases involving conspiracy to overturn election results and mishandling of classified documents. There would still be the Georgia case—concerning the overturning of election results—to contend with, but that case has been roiled by Fulton County District Attorney Fani Willis' conflict of interest scandal. And, in terms of the first two federal cases, legal experts are torn on whether Trump would be able to pardon himself.
"The answer is open in part because no president except Trump has ever been charged with a crime," reportsAxios. "But it's also the result of a failure on Congress's part to prohibit the potential practice through a constitutional amendment, though some members of Congress have tried to do so."
Hunter's guns: "A federal judge in Delaware denied Hunter Biden's bid to throw out his felony gun charges on Thursday, rejecting arguments from the president's son that the federal prohibition on owning guns while using illegal drugs is unconstitutional under the Second Amendment," reportsPolitico.
Biden the younger was charged in 2023 with buying a gun while using illegal drugs—he notoriously had a crack cocaine problem at the time of the purchase, in 2018—as well as lying about the drug use on a government form while buying the weapon.
"Separately, a federal appeals court panel ruled against Biden earlier Thursday in another bid to have the charges against him tossed," reportsPolitico. "The two decisions appear to clear the way for his case to head to trial on June 3, though his defense team can still pursue further appeals."
"Hunter Biden's multiplying gun charges threaten the right to arms and the right to trial," wroteReason's Jacob Sullum last year. "Survey data suggest that millions of gun owners are guilty of violating 18 USC 922(g)(3) because they consume arbitrarily proscribed intoxicants (mainly marijuana). Yet fewer than 150 Americans are prosecuted for that crime each year. Even when gun buyers (including people who are disqualified for other reasons, such as felony records) are caught lying on Form 4473, they are rarely prosecuted." It's almost like an example is being made of Hunter Biden, whose legal argument is in stark opposition to the Biden administration's position on the matter.
Scenes from New York: Inside the city's effort to remove severely mentally ill people from subway cars. We discussed this with Peter Moskos, a professor at John Jay College of Criminal Justice and former Baltimore cop, on Just Asking Questions #15, ("What does good policing look like?").
QUICK HITS
My friend Mike Solana, head honcho of Pirate Wires, interviewed Jack Dorsey. "In a rare, far-reaching interview, what follows is a missing chapter of internet history that sheds light not only on Bluesky, but Twitter, X, and the past five years of censorship and backlash," writes Solana. "Because of vulnerabilities designed into the technology, social media, in its current, centralized form, can't survive the global war on speech. The future will be decentralized, or it won't be free."
"Retiring early is becoming the norm as the share of US workers planning to work beyond age 62 continues to retreat, extending a downshift that started with the pandemic," reportsBloomberg, based on Federal Reserve Bank of New York data.
In the future, your AI concierge will date other AI concierges and get back to you with a filtered list of who to actually meet. (I'm not reflexively anti-AI, but this strikes me as a bit dark, undervaluing both chemistry and dissimilarity.)
Bumble founder Whitney Wolfe Herd says the future of dating is having your AI date other people's AI and recommend the best matches for you to meet pic.twitter.com/9GEEvpuiKZ
"There is broad agreement that the US housing market needs more homes," writes Conor Sen at Bloomberg. "There is also broad agreement that affordability needs to improve. But it doesn't necessarily follow that we should build more affordable homes."
The Justice Department yesterday confirmed that the Drug Enforcement Administration (DEA) plans to move marijuana from Schedule I of the Controlled Substances Act (CSA), a list of completely prohibited drugs, to Schedule III, which includes prescription medications such as ketamine, Tylenol with codeine, and anabolic steroids. The Associated Press notes that the change, which is based on an August 2023 recommendation by the Department of Health and Human Services (HHS) that resulted from a review President Joe Biden ordered in October 2022, "would not legalize marijuana outright for recreational use."
That is by no means the only thing rescheduling marijuana will not do. Biden wants credit for "marijuana reform," which he hopes will help motivate young voters whose turnout could be crucial to his reelection. The announcement of the DEA's decision seems designed to maximize its electoral impact. But voters should not be fooled: Although moving marijuana to Schedule III will facilitate medical research and provide a financial boost to the cannabis industry, it will leave federal pot prohibition essentially untouched.
Rescheduling marijuana will not resolve the conflict between the CSA and the laws of the 38 states that recognize cannabis as a medicine, 24 of which also allow recreational use. State-licensed marijuana businesses will remain criminal enterprises under federal law, exposing them to the risk of prosecution and forfeiture. While an annually renewed spending rider protects medical marijuana suppliers from those risks, prosecutorial discretion is the only thing that protects businesses serving the recreational market.
Even if they have state licenses, marijuana suppliers will be in the same legal position as anyone who sells a Schedule III drug without federal permission. Unauthorized distribution is punishable by up to 10 years in prison for a first offense and up to 20 years for subsequent offenses. That is less severe than the current federal penalties for growing or distributing marijuana, which include five-year, 10-year, and 20-year mandatory minimum sentences, depending on the number of plants or amount of marijuana. But distributing cannabis, with or without state permission, will remain a felony.
That reality suggests that banks will remain leery of providing financial services to state-licensed marijuana suppliers, which entails a risk of potentially devastating criminal, civil, and regulatory penalties. The dearth of financial services has forced many cannabis suppliers to rely heavily on cash, which is cumbersome and exposes them to a heightened risk of robbery. It also makes investment in business expansion difficult.
Although federal arrests for simple marijuana possession are rare, cannabis consumers likewise will still be committing crimes, even if they live in states that have legalized marijuana. Under 21 USC 844, possessing a controlled substance without a prescription is a misdemeanor punishable by a minimum $1,000 fine and up to a year in jail. Moving marijuana to Schedule III will not change that law, which only Congress can do. Nor did President Joe Biden's mass pardons for people convicted of simple marijuana possession under that statute, which apply only retrospectively, "decriminalize the use of cannabis," as he promised to do during his 2020 campaign.
Biden has repeatedly decried the barriers to education, employment, and housing that marijuana convictions create. But contrary to what he claims, his pardons do not entail expungement of criminal records and therefore do not eliminate those barriers. Nor did the pardons address the various legal disabilities associated with marijuana convictions, cannabis consumption, or participation in the cannabis industry, which include loss of Second Amendment rights (a policy that Biden defends) and ineligibility for admission, legal residence, and citizenship under immigration law. Rescheduling marijuana likewise will not remove those barriers and disabilities.
Moving marijuana to Schedule III will not even make it legally available as a medicine, which would require regulatory approval of specific products. Doctors can legally prescribe Marinol (a.k.a. dronabinol), a synthetic version of THC listed in Schedule III, and Epidiolex, a cannabis-derived CBD solution listed in Schedule V. But they will not be able to prescribe marijuana even after it is moved to Schedule III unless the Food and Drug Administration approves additional cannabis-based medications.
The medical "recommendations" that authorize patients to use marijuana for symptom relief under state law are not prescriptions, and they do not make such use compliant with the CSA. So rescheduling marijuana not only will not legalize recreational use; it will not legalize medical use either.
What will rescheduling do? It should make medical research easier by eliminating the regulatory requirements that are specific to Schedule I, and it will provide an important benefit to state-licensed marijuana suppliers by allowing them to deduct standard business expenses when they pay federal income taxes.
Under Section 280E of the Internal Revenue Code, which is aimed at sticking it to drug dealers, taxpayers may not claim a "deduction or credit" for "any amount paid or incurred during the taxable year in carrying on any trade or business" that involves "trafficking" in Schedule I or Schedule II drugs. As that provision has been interpreted by tax courts, marijuana businesses can still deduct the "cost of goods sold," which counterintuitively means they can deduct the expenses associated with obtaining and maintaining an inventory of cannabis products. But they cannot deduct any other business expenses, including rent, utilities, salaries and benefits, office supplies, security, cleaning services, insurance, and legal fees.
That rule results in a crushing financial burden, forcing marijuana retailers to pay an effective tax rate as high as 70 percent or more. But because Section 280E applies only to businesses that sell drugs in Schedule I or Schedule II, moving marijuana to Schedule III will eliminate that disadvantage.
"I cannot emphasize enough that removal of § 280E would change the industry forever," cannabis lawyer Vince Sliwoski writes. "Having worked with cannabis businesses for 13 years, I view taxation as the largest affront to marijuana businesses—more than banking access, intellectual property protection problems, lack of bankruptcy, you name it. This would be HUGE." In addition to making it much easier to turn a profit, Sliwoski says, the tax change would help attract investors and give marijuana businesses "more leverage" in negotiating those deals.
Aside from those practical changes, rescheduling represents a historic federal about-face on the benefits and hazards of marijuana. Schedule I is supposedly reserved for drugs with a high abuse potential and no accepted medical use that cannot be used safely even under a doctor's supervision. Explaining its rationale for recommending marijuana's reclassification, HHS acknowledged that the drug does not meet those criteria—a point that critics had been making for half a century.
HHS cited "credible scientific support" for marijuana's use in the treatment of pain, nausea and vomiting, and "anorexia related to a medical condition." Regarding abuse potential and safety, it noted that marijuana compares favorably to "other drugs of abuse," such as heroin (Schedule I), cocaine (Schedule II), benzodiazepines like Valium and Xanax (Schedule IV), and alcohol (unscheduled). "The vast majority of individuals who use marijuana," HHS said, "are doing so in a manner that does not lead to dangerous outcomes to themselves or others."
In agreeing to follow the HHS recommendation, the DEA likewise is implicitly admitting that the federal government has been lying about marijuana for decades. But that long-overdue reversal falls far short of addressing today's central cannabis issue: the conflict between federal prohibition and state tolerance, which extends to recreational use in jurisdictions that account for most of the U.S. population. Repealing the federal ban—a step that Americans overwhelmingly support—would resolve that conflict. And while Biden cannot do that on his own, he has stubbornly resisted the idea, even as he emphasizes the irrationality and injustice of the war on weed.
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.
In 1920, the perennial Socialist Party candidate Eugene V. Debs ran for president of the United States while serving time in a federal prison for delivering a seditious speech. He received nearly a million votes. His sentence was commuted by his erstwhile rival, the newly elected Republican Warren G. Harding, two days before Christmas in 1921.
No one expected Debs to actually win the White House. His best showing was in 1912, when he captured nearly 6 percent of the popular vote (but no presidential electors). So the nation has never had to seriously grapple with the possibility of someone winning the presidency while behind bars.
It might be time to think more seriously about that contingency. The Donald Trump years have brought many strange constitutional hypotheticals to life, and Trump promises more to come if he has a second term, recently demanding, for example, the courts must recognize "COMPLETE & TOTAL PRESIDENTIAL IMMUNITY" from all criminal acts that he might commit during a term of office. The 2024 elections promise more possibilities even before we get to serious third party candidacies or faithless electors.
Trump has not yet been outfitted with an orange jumpsuit, but stranger things have happened. The former president is now defending himself against four separate criminal indictments. The wheels of justice turn slowly, and these cases are unusually complicated. Moreover, Trump has an incentive to throw up as many procedural obstacles as possible with an expectation (an expectation that has not been legally tested) that all pending prosecutions will be put on hold if he were to return to the White House.
It is a decent bet that none of his criminal trials will reach a conclusion before November. But there is a genuine possibility that one or more of his trials could reach a verdict by Election Day. No doubt some of these prosecutions were brought with the hope of knocking Trump off the ballot, or at least damaging his candidacy, and some resemble more of a political Hail Mary than an ordinary criminal prosecution, but Trump faces a serious risk of conviction in at least some of them.
To briefly review, Trump is charged with election interference in New York, with a conspiracy to steal the 2020 election in Georgia, with mishandling national security documents and obstruction of justice in Florida, and with defrauding the federal government and obstructing a government proceeding in Washington, D.C. The first two of those cases were brought in state courts under state law by state prosecutors, and the other two were brought in federal courts under federal law by Department of Justice special counsel Jack Smith.
Of course, even if he were found guilty of a criminal charge in one or more of those cases, Trump could be expected to file appeals to those convictions. He would likely be released pending his appeals, which further reduces the likelihood that he would be serving a criminal sentence at the time of the election or even Inauguration Day.
There is nothing in the Constitution that prevents a current inmate of a state or federal penitentiary from running for or winning the presidency. Unsurprisingly, the constitutional framers did not anticipate the possibility that the American electorate might make such a choice, and so did not think to account for the possibility. Thus, we must now consider what would happen were Trump to be both criminally convicted and elected president.
If Trump is cooling his heels in the big house when Inauguration Day arrives, he could simply be sworn in as president in his prison cell. The presidential oath can be taken wherever the presidential designate happens to be at the time of his ascension to the office. Nothing says the president cannot be a convict, though the Department of Justice has insisted (when this was a live question under Nixon and Clinton) that a sitting president cannot be prosecuted. Joe Biden will stay out of prison—at least until he moves out of the White House.
Whether or not a president-elect is behind bars in the weeks after the election, what might we expect to happen?
1. A Pre-Inauguration Pardon
The most likely scenario might be that Trump would receive a pardon, or at least a commutation of his sentence, before Inauguration Day. The prospect of a president being sworn into office while behind bars is such a national embarrassment and potential constitutional crisis that responsible government officials may decide it necessary to spare the nation that particular nightmare.
When President Gerald Ford issued a pardon to former President Richard Nixon in September 1974, he explained: "My conscience tells me clearly and certainly that I cannot prolong the bad dreams that continue to reopen a chapter that is closed. My conscience tells me that only I, as president, have the constitutional power to firmly shut and seal this book. My conscience tells me it is my duty, not merely to proclaim domestic tranquility but to use every means that I have to ensure it."
As expected, the pardon damaged Ford's hopes of winning the presidency in his own right, but he believed the self-sacrifice was worth it to restore some normalcy after the Watergate scandal. The political costs to anyone pardoning Trump are also likely to be severe, but the national benefit of not inaugurating an inmate is arguably greater than that of turning the page on Nixon.
Trump's criminal liability is more complicated than was Nixon's. President Joe Biden could pardon Trump of his alleged federal crimes currently being prosecuted by Jack Smith. Biden's authority in regard to those crimes is plenary, but it expires at noon on Inauguration Day if he doesn't win in November. If Biden were to act at all, it would seem wise to do so shortly after the election rather than letting the situation draw out.
But Biden has no power to pardon Trump for his alleged state crimes. Georgia's Republican governor, Brian Kemp, does not have the authority to pardon Trump of any convictions that Fulton County District Attorney Fani T. Willis might win: The Georgia Constitution vests the pardon power in the State Board of Pardons and Paroles, which is composed of five members, all of whom were appointed by Republican governors. The board may not grant a pardon until a criminal sentence has been completed (or innocence has been proven), but it can commute a sentence when "such action would be in the best interests of society and the inmate." By contrast, New York Gov. Kathy Hochul, a Democrat, may grant reprieves, commutations, and pardons if Trump is convicted in the prosecution brought by Manhattan District Attorney Alvin Bragg.
2. An Impeachment
Perhaps the least likely scenario is that Congress rises to the challenge of what to do about an individual elected to serve as president who is currently an inmate. The House could adopt articles of impeachment holding that the crimes for which Trump had been convicted in state or federal court also qualified as high crimes and misdemeanors. The Senate could then try Trump on those articles of impeachment, with a conviction resulting in Trump's removal from office. Since Republicans currently control the House, it seems unlikely they would take this step. Even if they did, conviction in the Senate would hardly be assured. There are serious constitutional challenges to this path, which would undoubtedly increase the difficulty of persuading a necessary number of legislators to follow along.
First, the federal charges arising from Trump's actions in Mar-a-Lago involve his conduct when he was out of office. Whether a federal officer can be impeached for out-of-office misbehavior is constitutionally unsettled, at best.
Second, the other three prosecutions all involve Trump's conduct while still serving as president, but the Senate has already demonstrated that it is skittish about the prospect of convicting a former officer for misconduct while in office.
Third, the House has never impeached a private individual before he assumed a federal office. A pre-inauguration impeachment would require that the House be willing to take that unprecedented step and overcome the constitutional objections that would necessarily arise.
Fourth, it is not at all clear that the Senate can preemptively bar an individual from assuming office. The Constitution specifies that a sitting officer "shall be removed" upon conviction, but there can be no removal if Trump has not yet been inaugurated. The Senate can follow a conviction by disqualifying an individual from holding future federal office. The Senate has worked on the assumption that it can disqualify someone convicted in an impeachment by a subsequent simple-majority vote. This approach might make disqualification easier to win in the punishment phase, but it would also likely make conviction more difficult.
Congress could minimize some of these constitutional and political concerns by waiting to impeach and convict until after Trump is inaugurated. The newly elected House of Representatives will be sworn in on January 3, 2025, more than two weeks before Inauguration Day. A newly elected Democratic majority could move swiftly ahead with an impeachment of President-elect Trump as soon as the 119th Congress is convened. (Impeachment would presumably be a nonstarter if Trump's electoral coattails bring a Republican House majority.) If it so chose, the Senate could hold off on taking a vote to convict in an impeachment trial until the moment after Trump takes his oath of office. Immediately upon conviction, Trump would be removed from his new office.
Alternatively, the House could wait until Trump was sworn in to vote on articles of impeachment. Delaying the proceedings might avoid some constitutional questions about impeaching individuals before they take office, but it would still not avoid the problem of impeaching an individual for actions that took place before he assumed his current office.
3. A Post-Inauguration Disability
The 25th Amendment is being recognized more and more. Adopted in the wake of President John F. Kennedy's assassination, the amendment provides for the possibility of a still-living president unable to perform the duties of his office. Section 4 of the amendment has been much discussed of late, since it allows the Cabinet to involuntarily strip the president of his powers. There is essentially no chance that a Trump-appointed Cabinet would invoke Section 4 under these circumstances.
Section 3 has been the most used provision of the amendment, and it provides for the possibility that the president might voluntarily transmit to the leaders of Congress "his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President."
Presidents have used Section 3 when, for example, they expect to be under anesthesia. President Ronald Reagan somewhat reluctantly invoked this provision before undergoing surgery in 1985. President George W. Bush invoked it twice while he underwent colonoscopies. In 1988, a distinguished commission recommended that presidents put plans in place for invoking Section 3 in a variety of medical situations that would render the president temporarily unable to perform his duties.
Neither the Constitution nor practice has clarified what might render a president "unable to discharge the powers and duties of his office." Nothing prevents a newly inaugurated Trump from determining that his imprisonment constitutes such an incapacity necessitating he designate his vice president as acting president. As acting president, the vice president could immediately issue a pardon of Trump for any federal crimes. Trump, thus relieved of his criminal punishment, could then inform Congress that he is resuming his presidential duties and fly the coop aboard Marine One within minutes of his swearing in.
Of course, the pardon of an acting president could not reach punishments for state crimes. If Trump finds himself in a state prison in Georgia or New York on Inauguration Day, the 25th Amendment gambit will not work. It is, however, the safest way for Trump to receive a valid presidential pardon after his inauguration.
4. A Post-Inauguration Self-Pardon
Alternatively, a newly inaugurated Trump could dispense with the complications of the 25th Amendment and instead simply issue a pardon to himself for his federal crimes. This would be a legally risky strategy. There are good reasons for thinking that a self-pardon would not be constitutionally valid.
The director of the Federal Bureau of Prisons could presumably be persuaded to take the president's word for the validity of his self-pardon and see to his release. He would likely need a pliant attorney general and Office of Legal Counsel in place to provide legal cover, which would necessitate waiting until such officers could be appointed.
The validity of a self-pardon would undoubtedly be litigated. Trump would no doubt be able to wait out the litigation from the White House rather than from a prison cell. But with such a novel and difficult constitutional question, it is far from certain how the courts would resolve such a case. Ultimately, the question would have to be resolved by the Supreme Court.
If Trump had issued a self-pardon in his first term of office, it seems entirely plausible that the justices might have ruled it out of bounds. As a practical matter, though, Trump would back the Court into a difficult corner if he launched his second term of office with a self-pardon. In that situation, the justices would understand that declaring the pardon invalid would create an immediate constitutional crisis over whether the president would voluntarily return to prison. Faced with such high stakes, a majority of the justices might be willing to swallow their doubts and uphold Trump's self-pardon.
5. A Trump Resignation
There is always the possibility that an incarcerated Trump could recognize that he should decline to serve as president for the good of the country. He could declare his intentions before Inauguration Day or be sworn in and then immediately resign. In either case, the duly elected vice president would become the president.
Such a prison-house conversion seems extremely unlikely.
As long as we're reaching, there are two more scenarios that are at least possible. They are even more far-fetched than the resignation, but this is Trump that we're talking about. Who can say that he might not prefer the unexpected?
6. A Prison Presidency
We've all seen TV shows where an incarcerated mob boss keeps pulling the strings of his criminal organization from his jail cell. Trump is sometimes likened to a mob boss. Perhaps he would enjoy the drama and spectacle of being the leader of the free world from a customized and lavishly appointed wing of a penitentiary. State and federal officials might be willing to make such accommodations, even if they are not willing to simply let Trump go. If he can't go to the White House, then he can make White House operations come to him. He could meet with foreign dignitaries and congressional leaders in the prison yard. His chief of staff could set up shop in the cell next door to Trump's own. Donny from Queens could become The Kingpin.
7. A Presidential Prison Break
These are all legalistic scenarios, even if the legal strategies are sometimes a stretch. But why be limited by mere legalities? Trump likes to toy with raw power.
If he were confined in a federal prison on Inauguration Day, President Trump could simply order any and all necessary executive officers to release him from his cage. If some of those officers were not sufficiently pliant to his demands, he could remove and replace them with more accommodating substitutes. Trump might not bother to supply those officers with even the legal fig leaf of a self-pardon. He could simply order them to act and promise to pardon them if there are any legal consequences for their escorting him out of prison.
Trump would be daring Congress or the courts to stop him. But maybe the lesson he took away from his first term of office was that he could win such a dare.
If he were confined to a state prison on Inauguration Day, President Trump could not just issue orders to his jailers. Things would have to be done the hard way. Trump might expect the U.S. military to rescue the commander in chief from his imprisonment and overawe or overwhelm any resistance it might encounter in doing so. The military would perhaps be unwilling to obey such orders, but that would not necessarily deter him from trying to find a sufficient pocket of loyalists in the federal ranks who would be willing to storm a state prison complex on the president's orders.
The events of January 6, 2021, demonstrated that at least some Trump supporters were willing to riot on his behalf. It is unclear whether he still commands that level of passion, but perhaps there are those who would be willing to take up arms if he were to call out to them. Rather than imagining themselves as American patriots circa 1776, they would instead have to imagine themselves as French revolutionaries circa 1789 as they stormed their American Bastille. Whether taking to the streets to prevent Trump from being taken into custody in the first place or mustering outside the prison gates in an attempt to break him out, they would have no need to wait until Inauguration Day to liberate their hero.
Trump once bragged, "I can tell you I have the support of the police, the support of the military, the support of the Bikers for Trump—I have the tough people, but they don't play it tough—until they go to a certain point, and then it would be very bad, very bad." Very, very bad indeed
What If a Candidate or President-Elect Is Incapacitated?
We are on the path to nominating two presidential candidates well over the age of 75. From an actuarial perspective, this seems unwise.
If a newly inaugurated president were to suffer a major medical event in the moments after being sworn into office, the path forward would at least be clear: The 25th Amendment would kick into gear. If the president were to die, the vice president would become president and would select a new vice president to be confirmed by the Senate. If the president were to be left severely impaired but alive, the president could voluntarily and temporarily turn over his duties to the vice president. If he were unable to do so voluntarily, the vice president and a majority of the members of the Cabinet could vote to temporarily take the powers from him.
If a president-elect were to die before being sworn into office, the 20th Amendment specifies that the vice president–elect would be sworn in as president in his stead. If the president-elect were alive but unable to take the oath of office, the situation is not so clear, but most likely the vice president–elect would be sworn in, perhaps as acting president, and immediately begin to exercise the powers of the office.
Of course, the next American president will not truly be elected until the Electoral College casts its ballots on December 17, 2024. Once the electors have voted, their choice is locked in. If the nominal president-elect were to shuffle off this mortal coil before the electors meet, they could have a relatively free hand to choose someone else, but they most likely would be expected to choose the successful presidential running mate. (In 1872, one of the candidates did in fact die after Election Day and before the Electoral College met. He had lost the contest, so the question of who would get his votes was academic; the electors split their ballots among several figures, with three attempting to cast votes for the corpse.)
If a presidential candidate were to die shortly before the general election on November 5, 2024, his name would remain on the ballot and voters pulling that lever would in reality be choosing a slate of that candidate's presidential electors. If something were to happen to a candidate after the nominating convention but before ballots are printed and early voting begins? Well, then things get complicated, depending on each political party's own rules.
Essentially, if the Republican presidential nomination unexpectedly became vacant, the Republican National Committee would fill the slot using voting rules comparable to those of the national convention. If Biden were to vacate the nomination for any reason before early voting began, the Democratic National Committee would vote for a new presidential nominee.
A large majority of Americans—70 percent, according to the latest Gallup poll—support marijuana legalization, and that sentiment is especially strong among younger voters. Gallup found that 79 percent of 18-to-34-year-olds thought marijuana should be legal, compared to 64 percent of adults 55 or older. Similarly, a Pew Research Center survey found that support for legalization was inversely correlated with age. It therefore makes sense that President Joe Biden, who has generated little enthusiasm among Americans of any age group, would try to motivate young voters by touting his support for "marijuana reform."
The problem for Biden, a longtime drug warrior who is now presenting himself as a reformer, is that his position on marijuana falls far short of repealing federal prohibition, which is what most Americans say they want. His outreach attempts have clumsily obfuscated that point, as illustrated by a video that Vice President Kamala Harris posted on X (formerly Twitter) earlier this month.
"In 2020," Harris writes in her introduction, "young voters turned out in record numbers to make a difference. Let's do it again in 2024." The video highlights "the largest investment in climate action in history," cancellation of "$132 billion in student debt," "the first major gun safety legislation in nearly 30 years," and $7 billion in subsidies for historically black colleges and universities. Then Harris says this: "We changed federal marijuana policy, because nobody should have to go to jail just for smoking weed." That gloss is misleading in several ways.
Biden has not actually "changed federal marijuana policy." His two big moves in this area were a mass pardon for people convicted of simple possession under federal law and a directive that may soon result in moving marijuana from Schedule I of the Controlled Substances Act, a category supposedly reserved for drugs with a high abuse potential and no recognized medical use that cannot be used safely even under a doctor's supervision, to Schedule III, which includes prescription drugs such as ketamine, Tylenol with codeine, and anabolic steroids.
Although Harris, echoing Biden, says "nobody should have to go to jail just for smoking weed," that rarely happens. Biden's pardons, which excluded people convicted of growing or distributing marijuana, did not free a single prisoner, and they applied to a tiny fraction of possession cases, which are typically prosecuted under state law.
When he announced the pardons in October 2022, Biden noted that "criminal records for marijuana possession" create "needless barriers to employment, housing, and educational opportunities." But his pardons do not remove those barriers. They do not entail expungement of marijuana records, which is currently not possible under federal law. The certificates that pardon recipients can obtain might carry weight with landlords or employers, but there is no guarantee of that.
Biden's pardons also did not change federal law, which still treats simple marijuana possession as a misdemeanor punishable by a minimum $1,000 fine and up to a year in jail. So people can still be arrested for marijuana possession under federal law, even if they are unlikely to serve time for that offense (which would be true with or without Biden's pardons). The pardons that Biden announced on October 6, 2022, applied only to offenses committed "on or before the date of this proclamation." When he expanded those pardons on December 22, 2023, that became the new cutoff.
Marijuana use still can disqualify people from federal housing and food assistance. Under immigration law, marijuana convictions are still a bar to admission, legal residence, and citizenship. And cannabis consumers, even if they live in states that have legalized marijuana, are still prohibited from possessing firearms under 18 USC 922(g)(3), which applies to any "unlawful user" of a "controlled substance."
The Biden administration has stubbornly defended that last policy against Second Amendment challenges in federal court, where government lawyers have likened cannabis consumers to dangerous criminals and "lunatics." Worse, Biden signed the Bipartisan Safer Communities Act of 2022, which increased the maximum prison sentence for marijuana users who own guns from 10 years to 15 years and created a new potential charge against them, which likewise can be punished by up to 15 years behind bars. This is the very same law that Harris touts as "the first major gun safety legislation in nearly 30 years."
Biden, in short, has neither "decriminalize[d] the use of marijuana" nor "automatically expunge[d] all marijuana use convictions," as Harris promised on the campaign trail. Both of those steps would require congressional action that Biden has done little to promote.
What about rescheduling? A recent poll commissioned by the Coalition for Cannabis Scheduling Reform, Marijuana Momentreports, found that "voters' impression of the president jumped a net 11 points" after they were informed about "the implications of the rescheduling review that the president initiated." That included "an 11-point favorability swing among young voters 18-25," who "will be critical to his reelection bid."
But let's not get too excited. Since rescheduling has not happened yet, it is not true that Biden "changed federal marijuana policy" in this area either. And assuming that the Drug Enforcement Administration moves marijuana to Schedule III, as the Department of Health and Human Services recommended last August in response to Biden's directive, the practical impact would be limited. Rescheduling would facilitate medical research, and it would allow state-licensed marijuana suppliers to deduct business expenses when they file their federal tax returns, which is currently prohibited under Section 280E of the Internal Revenue Code.
Even after rescheduling, however, marijuana businesses would 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 asset forfeiture. For businesses that serve recreational consumers, prosecutorial discretion is the only protection against that risk. Cannabis consumers would still have no legally recognized right to own guns, and people who work in the cannabis industry would still face other disabilities under federal law, including life-disrupting consequences for immigrants. 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.
In response to overwhelming public support for marijuana legalization, in other words, Biden has made modest moves that leave federal prohibition essentially untouched. While he does not have the authority to unilaterally deschedule marijuana, he cannot even bring himself to support legislation that would do that. Why not?
During the 2020 campaign, Biden echoed seven decades of anti-pot propaganda, saying he was worried that marijuana might be a "gateway" to other, more dangerous drugs. "The truth of the matter is, there's not nearly been enough evidence that has been acquired as to whether or not it is a gateway drug," he said. "It's a debate, and I want a lot more before I legalize it nationally. I want to make sure we know a lot more about the science behind it….It is not irrational to do more scientific investigation to determine, which we have not done significantly enough, whether or not there are any things that relate to whether it's a gateway drug or not."
After Biden took office, his press secretary confirmed that his thinking had not changed. "He spoke about this on the campaign," she said. "He believes in decriminalizing the use of marijuana, but his position has not changed."
Biden's rationale for opposing legalization is the same line of argument that Harry J. Anslinger, who headed the Federal Bureau of Narcotics from 1930 to 1962, began pushing in the early 1950s after retreating from his oft-reiterated claim that marijuana causes murderous madness. "Over 50 percent of those young [heroin] addicts started on marijuana smoking," he told a congressional committee in 1951. "They started there and graduated to heroin; they took the needle when the thrill of marijuana was gone."
Anslinger reiterated that point four years later, when he testified in favor of stricter penalties for marijuana offenses. "While we are discussing marijuana," a senator said, "the real danger there is that the use of marijuana leads many people eventually to the use of heroin." Anslinger agreed: "That is the great problem and our great concern about the use of marijuana, that eventually if used over a long period, it does lead to heroin addiction."
Since then, a great deal of research has examined this issue, which is complicated by confounding variables that make the distinction between correlation and causation elusive. Biden nevertheless thinks "more scientific investigation" will reach a definitive conclusion. If he won't support legalization until we know for sure whether marijuana is a "gateway drug," he will never support legalization.
The supposedly reformed drug warrior's intransigence on this issue poses an obvious challenge for Harris, a belated legalization supporter who is trying to persuade voters who take the same view that Biden is simpatico. Marijuana Momentreports that Harris' staff recently has been reaching out to marijuana pardon recipients, "seeking assurance that the Justice Department certification process is going smoothly and engaging in broader discussions about cannabis policy reform."
According to Chris Goldstein, a marijuana activist who was pardoned for a 2014 possession conviction, the vice president's people get it. Goldstein was "surprised by how up to speed and nice everybody was," he told Marijuana Moment. "Her staff really did know the difference between rescheduling [and] descheduling, and they were interested to talk about it."
No doubt Biden also understands the difference. The problem is that he supports the former but not the latter, which he rejects for Anslinger-esque reasons. Cheery campaign videos cannot disguise that reality.
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