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Tuesday Talk*: Biden’s Weed Pardon


For an old school drug warrior, back when being a drug warrior was necessary for a Democrat to get elected, Joe Biden’s announcement that he was issuing a pardon for all citizens and lawful residents for simple possession of marijuana sent a signal.

He said the blanket pardon would help “thousands of people who were previously convicted of simple possession” and “who may be denied employment, housing, or educational opportunities as a result.” While “white and Black and brown people use marijuana at similar rates,” he noted, “Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.”

It’s not that he’s wrong about collateral consequences of a federal misdemeanor conviction for simple marijuana possession, even if there wasn’t a single person incarcerated who would be freed and, while it would be important to the approximately 6500 people who had federal convictions for simple possession, it would have no affect on the millions who had state convictions or those in federal custody or with convictions for conspiracy to distribute marijuana.

Weed remains illegal under federal law, and a Schedule I drug. Those convicted of weed distribution remain in prison and those who completed their sentences remain felons. As Jacob Sullum noted, this move was “modest” at best.

“Too many lives have been upended because of our failed approach to marijuana,” Biden said today. “It’s time that we right these wrongs.” Given the narrow reach of the policies he just announced—which leave marijuana prohibition untouched, do not allow even medical use, and keep marijuana growers and distributors in prison—his reforms represent only a modest step in that direction.

Some states have legalized pot, whether for medical use and/or recreational use. This has created an irrational conflict, that the same conduct that is lawful in one place is criminal in another. How can we rationally explain why this disparity exists where culpability is serious enough to imprison a person the next town over because there is a state line between the two?

Did Biden send a signal that he supported the federal decriminalization of marijuana, or perhaps even the legalization of weed?

Consider, for example, that just months ago, Biden’s Department of Justice successfully prosecuted a man named Jonathan Wall and sought 10 years to life in prison for the crime of conspiracy to distribute cannabis. While Biden deserves praise for pardoning people no longer imprisoned, it is important to remember that he is extending that olive branch while insisting that the people who sold them marijuana should be caged for decades.

“It remains deeply disturbing,” Jason Flores-Williams, who represented Wall in court until the conclusion of his trial in May, tells Reason. “While we’re glad that the president is pardoning people for pot possession, really what needs to happen is the decriminalization or total legalization of marijuana so that people like my current clients and people who I’ve represented don’t spend any time of their short precious lives incarcerated in a cage for a plant that I can go buy around the corner.”

That a line can be drawn between using and distributing marijuana, it’s a line that makes little sense. Not everyone has a backyard where they can grow pot, and so they have to get it somewhere. Why is it fine to possess it, to smoke it, but not provide it to those who do?

Granted, the legalization of pot has come with the state dictating who can lawfully grow and sell it, replete with bureaucratic requirements and a hefty tax levy, but that makes the  unlicensed distributors and sellers regulatory violators, not nefarious drug lords.

We’ve been living with an inexplicable conflict in the legal treatment of pot ever since Colorado dove into the abyss. Was Biden right to issue this mostly symbolic pardon? Was it too much or not enough? Does our patchwork approach, between states and fed create an irreconcilable conflict that needs to come to an end if we’re to have a rational approach to marijuana, where the same conduct in one place is cool and rewarded while it will put you in jail, if not prison, elsewhere?

And if so, how far does it go, possession, growth, personal use distribution, mass quantity distribution? Is there a line that shouldn’t be crossed, or is it time to remove the line altogether?

*Tuesday Talk rules apply.


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