Last Friday, I posted the following tweet:
It was meant to present a simple fact. Biden’s Crime Bill significantly increased federal penalties for drug offenses. Marijuana has been listed as a Schedule 1 Controlled Substance under the Controlled Substance Act since it was enacted in 1970, and according to international treaty since 1961. Therefore any change to the federal penalty with regard to “drug offenses” would include marijuana.
The 1994 Crime Bill includes the following:
Consideration of drug offenses to determine if the death penalty is justified
Revocation of supervised release or probation
Amending mandatory sentencing to include life imprisonment for drug offenses
Specified misdemeanors involving drugs as a reason to imprison immigrants who fail to depart; as well as to prevent reentry.
It further indirectly affected states in a way few mention, via Truth in Sentencing Incentive Grants. These grants incentivized states to keep more people in jail for at least 85 percent of their sentence. One of the requirements for the grant includes a specification for a “serious drug offense.” In a study on the influence of these grants, The Center on Urban Poverty and Social Change noted a correlation between a change in state sentencing and the implementation of grants.
There has been little to no acknowledgement of the affect these grants had on state response to marijuana possession. However, there has been a blatant attempt to shift the blame to states for their application of laws and policies written in the bill.
Biden’s Role in Crime Control
One of the common responses to the tweet was a refusal to acknowledge Biden’s role with regard to the Crime Bill. Given his own statements, this is an unreasonable and frankly false assertion.
Two additional facts that get lost in the discourse are, first, Biden’s role in crafting the Anti-Drug Abuse Act of 1986, which is noted for creating the disparity between Crack and Cocaine punishment, and amended the Controlled Substances Act to establish a scale of minimum penalties for first and subsequent possession offenses. Second, Biden also worked to draft the Comprehensive Crime Control Act of 1984 which established mandatory minimums for drug offenses.
The Violent Crime Control and Law Enforcement Act of 1994 was simply the natural progression of a government, which by all historical records, first flooded Black, Brown and Poor communities with drugs, guns and over policing; then punished those same communities for their participation in a criminal enterprise they did not create.
On Thursday, October 6, 2022, Biden made a statement regarding marijuana reform. In his statement, he declared three steps toward his campaign promise of decriminalizing marijuana.
Pardons of all prior Federal offenses of simple possession of marijuana, including a directive to the Attorney General to develop an administrative process for the issuance of certificates of pardon to eligible individuals.
An *urge* to all Governors to do the same with regard to state offenses.
A *request* to the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.
Watch Biden’s statement here:
The full statement can be read here: https://www.whitehouse.gov/briefing-room/statements-releases/2022/10/06/statement-from-president-biden-on-marijuana-reform/
The accompanying executive order can be read here: https://www.whitehouse.gov/briefing-room/presidential-actions/2022/10/06/granting-pardon-for-the-offense-of-simple-possession-of-marijuana/
The issues with the Pardons
Per the Department of Justice website, presidential pardons are not what one might assume. The DOJ website gives a clear explanation of the effect of these pardons.
“A pardon is an expression of the President’s forgiveness. It does not signify innocence or expunge the conviction. It does, however, remove civil disabilities—such as restrictions on the right to vote, to hold office, or to sit on a jury—that are imposed because of the pardoned conviction. It may also be helpful in obtaining licenses, bonding, or employment.”
It is imperative that everyone understand that pardons are not expungements. They do not erase the record of the conviction, and persons who are granted pardons still have to disclose their conviction when required. The difference is they can also present their pardon certificate as well.
These specific pardons are only applicable to convictions on or before October 6, 2022. As simple possession is still a federal crime, persons can still be charged, arrested and incarcerated for possessing marijuana. Finally, as there are no people currently incarcerated for this “crime”, no one will be released from federal prison due to these pardons. The assumption that people are being released from prison with these pardons is factually incorrect.
Beyond these facts, the pardon is only applicable to the singular charge of simple possession. If charges were combined for multiple controlled substances, the conviction cannot be pardoned. Further, if there is a conviction of multiple charges based on the same arrest, only the simple possession can be pardoned, even if the initial arrest was due to marijuana possession. This means there are likely a large percentage of people for whom the pardons will not be applicable or for whom the pardon will not provide full relief from prior convictions.
One of the more egregious factors of the executive order, is the choice to not allow persons who were non-citizens or “not lawfully present” to apply for a pardon. Given the specific inclusion of misdemeanor drug possession in order to prevent re-entry for non-citizens in the 1994 Crime Bill, this is a missed opportunity for this administration who appears to be continuing with many of the previous administration’s severe policies with regard to immigration.
Descheduling and Decriminalization of Marijuana
There is one specific document that technically could interfere with the ability to deschedule marijuana. The United Nations Conference for the Adoption of a Single Convention on Narcotic Drugs of 1961 listed marijuana as a Schedule 1 Narcotic. The US is party to this treaty and initially placed it in force in 1964.
This international treaty may appear to be a major roadblock with regard to descheduling. However, the US has previously opted to disregard international law and policies. It is worth noting the treaty does not require such harsh punishment in response to drug use and/or possession. Therefore, the US is already not in alignment with the international regulations.
For example, in 2002 the US decided to withdraw from the Rome Statute and disregard the International Criminal Court. In 1988 the Reagan administration, with consent of the Senate, limited the interpretation of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The latter decision allows for torture to occur within US borders, the former disregards the ability for international courts to hold the US responsible for these actions.
There is also an alternate path that does not require descheduling. The Netherlands simply decriminalized the possession of marijuana (and in 2010, added limited amounts of a number of drugs) without descheduling it. Thus allowing the Netherlands to remain party to the treaty, but preventing their citizens from being criminalized.
As of today’s date, H.R. 3617: Marijuana Opportunity Reinvestment and Expungement Act, which was introduced on May 28, 2021 and passed by the House of Representatives on April 4, 2022 is sitting in Senate committee. A brief search indicates that Biden has not indicated support for the bill. Given the statement made by Biden, in which he states, “no one should be in jail just for using or possessing marijuana” a simple way to support that effort, would be to support a bill which, in addition to other changes, specifically:
Decriminalizes marijuana
Removes marijuana from the list of scheduled substances under the Controlled Substances Act
Eliminates criminal penalties for an individual who manufactures, distributes, or possesses marijuana
Final Notes
According to a 10-year study by the ACLU, from 2001-2010 88% of 8.2 million (approximately 7.2 million) arrests were for simply having marijuana.
According to the Last Prison Project, there are approximately 10,000 people currently in federal prison for marijuana. However, this information is extremely hard to track and confirm.
There should be no doubt the laws put in place with Biden’s effort in 1984, 1986 and 1994 led to an increase in the criminalization of marijuana, and contributed to the continued growth of incarceration for that offense. Further, the life altering effects of arrest, trial and/or plea, as well as incarceration for the accused, their family, as well as their community is undeniable.
It is not unreasonable to expect the person who played such a major role in creating this situation, who now has significantly more power, to do more than pardon an estimated 6500 people with prior convictions and urge or request anything with regard to policies and laws he helped to create.
Additional articles read and/or reviewed while researching this topic:
The Atlantic: https://www.theatlantic.com/politics/archive/2019/09/joe-biden-crime-bill-and-americans-short-memory/597547/
The Marshall Project: https://www.themarshallproject.org/2016/04/11/bill-clinton-black-lives-and-the-myths-of-the-1994-crime-bill
New York Magazine: https://nymag.com/intelligencer/2019/06/on-crime-biden-worked-closely-with-his-segregationist-pals.html
The 2021 Commission Report to the UN: https://inquirycommission.org/website/wp-content/uploads/2021/04/Commission-Report-15-April.pdf
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