On October 6, 2022, President Joe Biden announced a mass presidential pardon of all prior federal offenses of simple marijuana possession. In his statement, he emphasized the importance of doing so to “right the wrongs” of disproportionate convictions and the barriers to employment, housing, and education they create. However, presidential pardons do not expunge or erase convictions from one’s record, meaning that the original federal conviction as well as note of a pardon will remain and could continue to act as a barrier to access. Several other parties fall through the gap of this brief, including anyone convicted contemporaneously of possession of another illegal substance or of any other charge related to marijuana and any non-citizen not legally present in the United States during the time of their offense. Most notably, the pardon only applies to federal offenses.
This gets to the heart of criticism of Biden’s statement: it simply does not do enough. Currently, a senior administration official reports only about 6,500 people with prior federal convictions for simple marijuana possession, and there are few, if any, among them currently incarcerated who would be affected by this pardon. A vast majority of those imprisoned for simple marijuana possession are convicted at the state level, where the president has no power to grant clemency. In his October 6th statement, President Biden urged all governors to follow his direction, but the likelihood of this happening nationally is nearly impossible. In states where governors are sympathetic, many have already begun to expunge records for nonviolent marijuana offenses, and in others, like Louisiana, Minnesota, and Kansas, state laws prohibit mass pardons for marijuana convictions.
This is largely due to marijuana’s current marking as a Schedule I drug under the Controlled Substances Act, which designates it as extremely dangerous with a high potential for abuse and no medical use, despite it being prescribed regularly for medical intervention and despite there being no record of a fatal marijuana overdose. As a matter of fact, marijuana was never meant to remain on the schedule; in 1972, after research on the plants and its effects completed, scientists recommended that marijuana be decriminalized, but then-Attorney General John Mitchell, under then-President Richard Nixon, overruled this decision. Marijuana remains a Schedule I drug due to this decision and the difficulty of reclassification baked into the act itself.
In 1994, former Nixon aide John Ehrlichman said, “[B]y getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities… Did we know we were lying about the drugs? Of course we did.” These words underlined the policy of the Nixon administration, policy that would help incite the War on Drugs and become increasingly carceral under future president Ronald Reagan. The War on Drugs produced mandatory minimum sentences for drug possession and distribution, which mandate time in prison without parole regardless of whether or not the sentence is too harsh for a given offense, and disproportionately increase incarceration in low-income communities and communities of color. Biden cited this disparity in his public brief: “while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.”
The U.S. Department of Justice Civil Rights Department underlines the right to vote as the foundation of American democracy, an idea shared by political scientists Aziz Huq and Tom Ginsburg, political theorist Robert Dahl, and the majority of Americans. It is also a right restricted by all but three U.S. states in some capacity when a voter has been convicted of a crime.
Only in Maine, Vermont, and Mississippi, as well as Washington D.C., does criminal conviction not warrant restricted voting rights, meaning citizens can vote during any time of their prison sentence without restriction. In other states, any conviction of a misdemeanor or felony can mean restricted voting rights while imprisoned (ie. Indiana, Illinois, and Michigan), and in some states, citizens cannot vote until all terms of a felony conviction have been fulfilled, including time on parole, supervision, and until all fines and restitution have been paid (ie. Alaska, Wisconsin, and Georgia). This difference in voting restrictions is exacerbated when you consider that the states with less restrictions are more likely to have already legalized or decriminalized marijuana, as in all four aforementioned territories without these restrictions, and the states with greater restrictions are less likely to weaken cannabis laws, as in Tennessee, where felons cannot vote until all terms of their conviction are fulfilled and they successfully reapply for voting rights and where marijuana is neither legalized nor decriminalized. This means that, in states where marijuana is still criminalized, those convicted are more likely to spend more time without their right to vote.
When marginalized demographics are systematically removed from voting and participating in civic engagement, democracy is eroded, and this line can be drawn directly from the War on Drugs of the 70s to the voting restrictions of today.
Political economist Joseph Schumpeter’s classical definition of democracy as “the will of the people” can also be applied to the issue of marijuana’s criminalization. According to a 2021 Pew Research study, 60% of Americans believe that marijuana should be legal for recreational and medical use with an additional 31% believing that marijuana should be legalized at least for medical use. When you compare that with the aforementioned statistic that most Americans see voting as a given right, there is an overwhelming belief that marijuana use should not result in an inability to vote, and given Schumpeter’s democracy, this belief should be reflected in federal law.
There is hope in Biden’s statement. Along with the presidential pardons, he also set in motion a plan to deschedule marijuana, a process that begins with the Food and Drug Administration, continues to the Drug Enforcement Administration, and moves to the secretary of Health and Human Services, Xavier Becerra, who can recommend that marijuana be descheduled to a lower, less restrictive schedule or removed from the schedule entirely. Legal expert Daniel Shortt noted that this is “the most consequential piece of federal cannabis policy since 1937.” Indeed, if marijuana is descheduled, particularly into decriminalization, and past records of marijuana-related charges are expunged, more U.S. citizens would be able to participate in civic dialogue and voting, and democracy would return from where it was previously eroded.