In granting pardons for federal marijuana possession convictions, President Joe Biden is taking a historic step that is likely to be widely popular and could energize core Democratic constituencies just over a month from the midterm elections.
It would change the lives of thousands of Americans convicted of marijuana possession, especially if governors follow the President’s lead.
But it also risks playing into searing Republican attacks branding Democrats as soft on crime, which are rocking multiple key contests ahead of elections that could hand control of the Senate and the House of Representatives to the GOP.
The President’s move is limited, for now, and does not go as far as legalizing the drug – an issue that is central to some campaigns this fall – including that of Pennsylvania’s Lt. Gov. John Fetterman, whose bid for Senate is Democrats’ best chance of flipping a seat and could decide the destiny of the chamber.
Specifically, the President will take executive action to pardon all prior federal offenses of simple marijuana possession. He has also directed the Justice Department to review how the drug is categorized in federal law. It is currently scheduled on the same level as more harmful substances like LSD, heroin and fentanyl and methamphetamine. White House officials said there were 6,500 people convicted of simple possession of weed under federal law between 1992 and 2021. Thousands more faced state convictions.
“No one should be in jail just for using or possessing marijuana,” Biden said in a video. “It’s legal in many states, and criminal records for marijuana possession have led to needless barriers to employment, housing, and educational opportunities. And that’s before you address the racial disparities around who suffers the consequences.”
Officials in any administration often balk at the suggestion their moves are purely motivated by politics. But Biden’s decision on this issue represents a campaign promise fulfilled, and it’s being rolled out just weeks before a midterm election, so it’s hard not to see this as a highly political move.
Biden’s action will, for instance, please civil rights and criminal justice reform advocates since Black Americans – a key Democratic Party demographic – are more than three times as likely to be arrested for marijuana possession, according to the American Civil Liberties Union.
And as with his plan to cancel up to $20,000 in federal student loan debt, Thursday’s decision looks like an attempt to enthuse younger voters, who are increasingly open to recreational marijuana use and who are notoriously hard to drive to the polls, especially in midterm elections. Democratic hopes of fending off a Republican red wave in November have been boosted by increased base enthusiasm following the Supreme Court’s abortion decision – a trend that Biden’s marijuana pardons could extend. Still, two new CNN polls in Arizona and Nevada – two crucial Senate battlegrounds – show that the economy and inflation remain the most important issues to voters and pose a strong threat to Democratic candidates given their monopoly on political power in Washington.
One Democrat made an immediate attempt to exploit Biden’s move for his campaign. Beto O’Rourke, who is mounting a long-shot bid to unseat Texas Republican Gov. Greg Abbott, issued a statement pledging, “When I am governor, we will finally legalize marijuana in Texas and expunge the records of those arrested for marijuana possession.”
In some ways, the debate over the legal status of marijuana parallels the changing social attitudes that drove the fight to legalize same sex marriage, in that the public appeared to be well ahead of political leaders on the issue.
Weed is becoming more socially acceptable and popular, a factor that is being recognized below the federal level with multiple state ballot initiatives and laws legalizing it.
Just a few months ago, Gallup’s polling found for the first time that more Americans (16%) said they smoke weed than had smoked a tobacco cigarette in the preceding week (11%).
And in research that may underscore Biden’s political goals, the National Institutes of Health reported in August that marijuana use among young adults had reached all-time highs. Some 43% of that cohort reported using weed over the past year in 2021 – up from 34% in 2016 and from 29% in 2011.
Last year, Gallup found that 68% of Americans favored legalizing marijuana for recreational use. That figure suggests significant bipartisan support for the President’s historic first foray into the marijuana debate. This is also a takeaway from ballot initiatives and legislative moves to decriminalize or legalize marijuana from Democratic-run Oregon to Republican-dominated South Dakota. A total of 19 states and the District of Columbia have legalized marijuana for recreational use for adults over 21, according to the Marijuana Policy Project, an organization dedicated to legalizing cannabis.
Yet despite these societal changes, some politicians have still been reticent to move aggressively on the issue. Biden himself has undergone a prolonged evolution but his moves on Thursday still stop short of full decriminalization of the drug. CNN’s Kevin Liptak reported that there was wrangling inside the White House ahead of Thursday’s announcement complicated by Biden’s personal skepticism about decriminalization.
There still appears to be concern among some politicians about being branded as soft on drugs as well as disquiet over the possibility that fully decriminalizing pot could lead to greater drug use among young people. Earlier this year, for example, Delaware’s Democratic Gov. John Carney vetoed a bill that would have legalized recreational use of marijuana, citing uncertainty about long-term health, its impact on young people and law enforcement concerns.
The decision by the President could play into midterm election campaigns even at this late stage. Republicans have been rooting their efforts to win the House and Senate partly on ads and rhetorical attacks that portray Democrats as anti-police and soft on crime. They conjure a picture of a nation cowering from violent crime that can all be laid at Biden’s door.
Abbott was quick to rebuff the President’s call for governors to emulate his executive orders, and laid out how some Republican candidates might respond.
“Texas is not in the habit of taking criminal justice advice from the leader of the defund police party and someone who has overseen a criminal justice system run amuck with cashless bail and a revolving door for violent criminals,” Abbott campaign spokesperson Renae Eze said. (Biden and many of this year’s Democratic nominees in top races have said they do not support defunding the police.)
But Americans for Prosperity, the libertarian advocacy group that has often been a force in GOP politics, praised the President’s decision, underscoring how the marijuana issue doesn’t always follow straight party lines.
“We should prioritize criminal justice system resources on protecting life, liberty, and property, not incarcerating people who are not a threat to public safety,” said AFP Senior Vice President of Government Affairs Brent Gardner.
“Congress must act to end prohibition,” he continued.
The Democratic-controlled House passed a bill that would decriminalize marijuana in April, with a narrow bipartisan majority. But action has stalled in the evenly divided Senate, one reason why Biden is using his executive power to act.
Opponents of legalization often argue that as well as having potentially negative health effects, marijuana can be a “gateway” drug that can lead to other substance abuse and potentially criminal behavior.
In a major report released last week, the Republican Study Committee – a leading House GOP caucus – released policy recommendations for conservatives and highlighted opposition to any moves to make marijuana more accepted.
“Marijuana remains a federally scheduled controlled substance, but that has not stopped more and more states and localities from legalizing it under their own laws. This has led to an explosion of marijuana use among children, which is having a hugely negative impact on their health,” the report said.
“Congress should not legalize marijuana, while also taking steps to constrain this new industry’s ability to harm children.”
While marijuana is regarded by many users as less harmful than alcohol or tobacco, Biden’s own government warns that in the short term, it can cause perception changes and disorientation. In the longer term, according, to the Drug Enforcement Administration and the Department of Justice, the drug can lead to “physical dependence and withdrawal following discontinuation, as well as psychological addiction or dependence.”
Biden’s move was, however, immediately welcomed by criminal justice reformers, given the wide racial disparities in marijuana-related arrests.
“President Biden’s executive order is transformative for the lives of thousands of people and families harmed by our broken cannabis laws,” New Jersey Democratic Sen. Cory Booker said in a statement. “This is a huge step forward toward a more just criminal justice system and more rational drug policy.”
And Maya Wiley, president and CEO of The Leadership Conference on Civil and Human Rights, said Biden had righted a historic wrong and warned that the “war on drugs” had harmed communities of color.
“Despite the legalization of marijuana in many states, the federal ban has resulted in too many arrests and prosecutions of Black and Brown people, fueling mass incarceration and the devastation of our communities,” Wiley said.
“Everyone in America – regardless of race or background – has the right to live safely, provide for their families, and build the future they want. We urge Congress to pass comprehensive drug reform legislation and send it to the president’s desk.”