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.
The freedom and availability of voter participation in elections is definitely one of the most important safeguards of democracy – and the most common way for America’s more populist leaders manipulate elections. Voter access is hindered in a ton of ways, and one of those is the fact that convicted felons can’t vote. This came up recently too in the federal criminalization of abortion: it was considered, among other things, a broadly strategic move in taking away womens’ right to vote. So the decriminalization of marijuana and removal of felony possession charges, which disproportionately affect minority rights, is vital to the preservation of American democracy.
However, in this, we run into a deeper problem. In theory, if the government were to deschedule marijuana and make removing charges mandatory for the convicted, that would be fantastic. But the wildly increasing polarization in the public sector, and the right-swing of the political sector will not allow that without a significant amount of change. Though, as cited in your article, 60% of Americans believe marijuana should be legal recreationally and another 31% believe it should be legal in another form, this does not account for the government. Yes, the polarization in America trends equally both towards the right and the left, (https://www.pewresearch.org/politics/wp-content/uploads/sites/4/2014/06/PP-2014-06-12-polarization-0-01.png) but the political trends in American government absolutely do not reflect that: congress has become far more conservative over the years (https://www.pewresearch.org/wp-content/uploads/2022/03/ft_2022.02.22_congresspolarization_house_senate_new.png), and the democrat contingent has stayed relatively stagnant in their average political views (https://www.pewresearch.org/wp-content/uploads/2022/03/FT_22.02.22_CongressPolarization_chamber_party_new1.png). This means that for any democratic or slightly left-leaning politician to get into power, maintain it, or create laws and actions that will make it through congress, they have to be – at absolutely most liberal – centrist. Regardless of what the people believe, the government is not changing to represent that, and that is reflective of a deeper problem in American politics that will not allow for, or be fixed by, the decriminalization of marijuana.
I appreciate the clear and concise summary of the presidential pardon. A lot of people don’t understand the true nature of the pardon and the fact that it will ultimately only be useful to a select few people across the country, so this explanation simplified the idea as a whole and offered an explanation as to why this pardon does not necessarily deserve all the praise it has received in the media as of late.
The connection you made between the criminalization of marijuana and democratic erosion is not one that I would have made, but I can definitely see the line of thinking in the blog post.
A couple of caveats: Polling in recent years has become more and more of a debated topic. So, while ideally the data you shared from Pew Research Center would inherently be connected in this manner, there is no way to ensure that the people who answered these poll questions agree on all aforementioned conditions (agreeing that is a given right, and that marijuana should at the very least be decriminalized). This connection seems like a leap to me. I also don’t see how granting voting rights to the masses of people who have lost them due to the criminalization of marijuana leads to the reversal of democratic erosion. While voting rights are democratic, the underlying messages and meanings behind the criminalization of marijuana still remain as a somewhat commonly held belief, so until these beliefs are erased, which is not likely to happen anytime soon, has democratic erosion been reversed? What I mean to say is that the racist basis of these policies and criminalization of marijuana does not go away with the decriminalization and de-scheduling of the drug, so I am unsure if it is accurate to say that reversal has or will occur with the decriminalization of the drug. Is there evidence to support that voting will increase amongst people who were once incarcerated or felons if this pardon were to truly help those affected by racist and unjust laws against marijuana?
I think you make very valuable points in your analysis of the legalization of marijuana in the U.S. I think what you touched upon exemplifies the difference between state and federal rights. It raises some questions about voting rights and laws: should all states have the same voting laws for federal elections? It also raises some valuable questions about our prison system in general: why do we persecute drug users and possessors? There have been countless studies and real-life examples such as Portugal and the Netherlands, of the decimalization of drugs and its success in terms of drug use, overdose deaths, and the fact that fewer people tend to use in general when it’s legal. Criminalizing addiction and small possession charges has always been rooted in racial motivation, as much of the prison system itself has strived to lock up a disproportionate amount of black and Latino populations. That’s why there is even a difference in the way drugs are used–crack versus cocaine. Our prison and justice systems are incredibly flawed, with underlying themes of slave labor, run by private prisons, and owned by billion-dollar corporations. When you lock up more black and Latino people and refuse to let them vote even after they served their time, it shows you that this constitutional right can be taken away by this flawed system. Therefore is it actually a right given to all citizens? If not, then all the other rights in the constitution should have an asterisk on them saying *this doesn’t apply to you if the following has happened to you… The U.S has never been a democracy, it’s a corporate oligarchy at best that still uses slave labor and fails to justify it, especially in the case of Marijuana possession. Regardless of what a prisoner did, they are still citizens of this country. And who they vote for can affect them regardless of whether they are in prison or not–as there could be a candidate that wants to combat the unfair laws, in this case, Biden.
In your examination of the decriminalization of marijuana in the United States, I believe your analysis presents a strong case and identifies major problems within the United States government. Outlawing addiction and minor holding offenses has historically been motivated by race because a large component of the penitentiary has worked to incarcerate an excessive number of black populations. Because of this, addictive drugs such as heroin are utilized in quite different ways. The American court system and correctional systems are fundamentally defective as unconstitutional overcriminalization is becoming more apparent and the lack of focus on community prevention and treatment programs. As we have seen in the past two years, more African-American individuals being imprisoned and being denied the access to vote even after serving their sentences serves as evidence that this defective system is capable of removing this government entitlement. In addition, among the crucial protections for democracy is the openness and accessibility of voting, which also makes it the most popular method for populist politician in the U.S to influence polls. There are several barriers to voting, and one of them is the inability of criminals to cast ballots. Decriminalizing marijuana and getting rid of serious drug charges, which mainly interfere with liberties, are therefore essential to maintaining U.S democracy. It would be highly beneficial if the state declassified marijuana and made expunging convictions a requirement for those found guilty. Essentially, this recognizes for any representative of democracy to win an election or pass legislation through the government, they must be left-leaning on the political spectrum. Thus, the government fails to adapt to progression and this presents a fundamental issue in the United States that fails to be resolved by decriminalizing marijuana. Overall, the government has many flaws in regards to this issue and the question remains whether or not they will be able to carry out the necessary steps to change.
The Blog Post,, “Marijuana Decriminalization as a Method of Democratization” (Rauscher), describes Joe Biden’s attempt to reform Marijuana policy by decriminalizing it as a “method of democratization.” Specifically, Biden wants to improve the “mass incarceration” resulting from Marijuana criminal convictions by providing “presidential pardon” , or forgiveness to “…federal offense of simple marijuana possessions” in order to eliminate housing, employment, and educational hurdles. In short, Biden wants to provide presidential pardon for those convicted of marijuana possession and are incarcerated in order to eliminate criminal records that serve as a barrier in the future, from accessing housing, employment, and education. Even though it could be beneficial to the convicted individuals, presidential pardon does not get rid of criminal record history. This implies that Biden’s marijuana policy reform attempt does not democratize, but it could be that Biden is trying to access minority voters for his reelection. This raises a question, what motives made Biden to grant pardon for marijuana posessions?
Rauscher also discussed that most marijuana related convictions are handled by state level rather than federal level, yet Biden encouraged other states to follow his plan. This shows that Biden’s plan is either to make convicted people participate in civic engagement in democracy or for his own election gains. As the post pointed out that a great number of the convicts are minorities and blacks, which means that those group voters count matters for Democrats. Thus, policy reform is a necessary condition in order to count the convicted votes. Despite this, it is controversial, whether Biden’s decriminalization plan will lead to democratization? Simply, the motive of decriminalization could be for electorate gains rather than providing solutions to the incarceration issues. Based on “Worth Rises”, private prison industries spend lots of money to build new prison facilities and they make profit off the incarcerated. In conclusion, it is skeptical whether democratization is dependent on decriminalization as one of the determining factors.
This is a very well done post. You’re right, it’s important to remember that these convictions strip many of their democratic rights, and that the legalization of marijuana on a federal level could address the disproportional impact such convictions have on minority communities. Surprisingly, there is no correlation between the percentage of POC and the legality of marijuana, but then again, the presence of POC is not necessarily reflected in each states’ legislature. There is also no correlation between the population density of a state and marijuana legalization. I’m curious to see whether people who were convicted of selling marijuana see any impacts from this down the road, because currently, they would not be pardoned whether marijuana is descheduled, rescheduled, or neither. Given that the majority of marijuana-related convictions are more serious than possession, there could be a greater level of democratization if lawmakers developed a strategy to address their circumstance as well.
Sorry to leave all the replies, but I wanted to note that the first observation I made about the POC population percentages in each state vs the legal status of marijuana there was under the assumption that that group would be most interested in lifting the voting restrictions for people within their communities created by marijuana’s classification. The second comment over population density was made because I checked whether urbanism played a role in the legalization of marijuana.
Very well written piece with a defined argument and strong supporting evidence. You included some information about how people of color are disproportionately arrested (and therefore lose their suffrage) for charges relating to weed, but I believe you could have focused more on how taking voting rights from an oppressed group of people is actually a more extreme form of democratic erosion since excluding a minority group is a further step then restricting voting laws in general. States where weed is criminalized are (almost?) entirely Republican, and the GOP knows that individuals who smoke weed are more likely to vote democratic, so it is not in their own interest to legalize it. The GOP also knows that people of color are disproportionately arrested for weed, and they also know that is statistically within their best interest that people of color lose their right to vote. The data is impossible to ignore that alcohol and tobacco are significantly more dangerous than weed, so the GOP is keeping weed criminalized because it helps them electorally, by taking the voting rights of individuals who are statistically more likely to vote democratic. You clearly laid out these facts, but I am taking a step further asserting that the GOP is trying to prevent democrats from voting (which is demonstrated by many other things besides weed laws), which is inherently authoritarian. Restrictive weed laws are another example of how American conservatism is trending towards authoritarianism and undemocratic values.
One question I have is you claim that rescheduling weed would be very helpful to restore the democratic ability for many to vote. Making weed no longer schedule 1 would allow for weed to become more legitimized, such as allowing dispensaries to accept credit cards, but would it do anything in states that currently have weed criminalized? Unless congress passes legislation that legalizes weed nationwide, would states not continue to have the ability to determine their own laws about weed? Do we not just need to decriminalize weed federally, but rather legalize it nationwide? I think we need to go further.
This post is a great timeline of cannabis regulation and the many side effects caused by the inability of the government to adapt to the destigmatization of the substance. For a long period of the colonized United States’ history, cannabis and the production of its hemp bi products was encouraged. It wasn’t until the Great Depression where racially motivated ideations began to become widely spread about the substance and sparked the first wave of “reefer madness”. Currently we’ve seen progress in the fight for reform and legalization, but as you mentioned there is still a long way to go before we see actual change in terms of restorative justice.