A large majority of Americans70 percent, according to the latest Gallup pollsupport 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, appliedonly 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 criminalsand “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 Moment reports, 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 oung [heroin] addicts started on marijuana smoking,” hetolda 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.” Anslingeragreed: “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 Moment reports 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.
