Just a few years ago, it would have been unthinkable for a major political party to call for decriminalizing marijuana — but in 2020, the Democrats did just that. Approved in August, the platform called for decriminalizing and rescheduling marijuana through executive action, with support for legalizing medical marijuana and expunging past criminal convictions for cannabis-related offenses all on the table.
“Democrats believe no one should be in prison solely because they use drugs,” the platform states. “Democrats will decriminalize marijuana use and reschedule it through executive action on the federal level.”
A lot has changed since August, and the first few weeks of the Biden administration have been consumed with trillion-dollar stimulus plans and the pending impeachment of Donald Trump. But decriminalizing marijuana is still a pivotal issue for millions of Americans, with more than half a million arrests for marijuana possession each year. And while advocates are willing to accept a delay, there’s mounting pressure on President Joe Biden to ensure decriminalization doesn’t fall off the agenda entirely — and mounting anxiety about whether the new president will make good on his party’s platform.
Biden was once a leading voice in the War on Drugs
Advocates argue the timing has never been better for decriminalization, between last summer’s criminal justice protests and a slow-but-steady rise in support. A recent Gallup poll showed 68 percent of Americans support legalization, the highest figure since Gallup started polling the issue in 1969. In November, voters approved new cannabis laws in four states — and in December, the Democrats in the House of Representatives passed the MORE Act, which would have legalized marijuana and expunged the criminal records of people convicted of marijuana-related crimes. (The bill died in the Senate.)
But to make good on pledges of executive action, decriminalization advocates will need support from the White House, not just Congress — and Biden’s position is much less clear. The White House did not reply to a request for comment from The Verge about whether Biden would move forward with the reforms outlined in the Democrats’ 2020 platform — but there’s plenty in his background to make activists worried. Biden was once a leading voice in the War on Drugs of the 1980s and ’90s, although he changed his position on marijuana during the 2020 campaign. Candidate Biden went from not supporting legalization at all to supporting decriminalizing the drug and leaving it up to states whether to allow recreational use by the time he was the Democrats’ 2020 nominee. Most importantly, Biden said he would “reschedule cannabis as a Schedule II drug so researchers can study its positive and negative impacts.”
Despite Biden’s mixed messages, legalization advocates think the issue is too popular and urgent for Biden to ignore. “I think the Biden administration agrees with us, at least on the piece of expunging past records,” says Maritza Perez, director of the Office of National Affairs at the pro-legalization Drug Policy Alliance. “At this point, this is something the administration cannot ignore; this administration and this Congress have to do something.”
Legalization advocates may have an ally in Vice President Kamala Harris
The Drug Policy Alliance wants Biden to fully deschedule cannabis, with the focus on criminal justice reform. The alliance also wants Biden to reinstate an Obama-era policy that blocked federal law enforcement from taking action in states where marijuana was legal.
Perez also notes that legalization advocates may have an ally in Vice President Kamala Harris, a main sponsor of the MORE Act in the Senate, has been supportive of legalization in recent years. Like Biden, Harris’ views on legal weed have changed over time; in 2010, she opposed a ballot measure (which ultimately failed) to legalize cannabis in California. But in 2018, she co-sponsored Sen. Cory Booker’s Marijuana Justice Act to legalize marijuana at the federal level, mainly because marijuana laws “are not applied and enforced the same way for all people,” she said at the time. And Harris reiterated during the vice presidential debate with Mike Pence in October that a Biden-Harris administration would decriminalize marijuana and expunge past weed-related convictions.
“She does have [Biden’s] ear on these issues of criminal justice and racial justice, so our hope is that she will be influencing the policy decisions,” Perez said.
But despite the overwhelming public sentiment favoring some kind of marijuana reform and a reasonable argument for moving weed into a less restricted drug category, the process for rescheduling is complicated and not something President Biden can just do on his own.
John Hudak is deputy director of the Center for Effective Public Management at the Brookings Institution and author of the book Marijuana: A Short History, which examines how the drug went from a counterculture novelty to the mainstream. He says Biden has made it clear he doesn’t support full-scale national legalization.
“We’re not going to see Biden or the White House pushing for the MORE Act, or de-scheduling marijuana,” Hudak said in an interview with The Verge. And even with Democrats in control of the Senate, the MORE Act likely doesn’t have the votes to beat a filibuster in that chamber, he added.
“There are two scenarios I see in which larger-scale cannabis reform becomes law,” Hudak said. “If Congressional Democrats slip something into a criminal justice bill, it would be impossible for Biden to veto just because it has cannabis reform in it. If that happens, it forces the president’s hand.”
The other potential scenario, Hudak said, would be if Harris pushed Biden to take more of a public stance, if not take action, and “does to Joe Biden on cannabis what Biden did to Obama on same-sex marriage.” In 2012, then-Vice President Biden famously spoke out in favor of same-sex marriage ahead of President Obama, which compelled Obama to publicly express his support earlier than he had planned.
Another hurdle for decriminalization is the mechanics of rescheduling. Congress could reschedule the bill by amending the Controlled Substances Act directly, but with the filibuster still in place, such a bill would have trouble passing the deadlocked Senate. The more likely path would be through the attorney general, who can initiate a rescheduling after a review by the Food and Drug Administration or Drug Enforcement Administration. The goal would be to move marijuana from schedule 1 (which includes heroin and MDMA) to schedule 2 (which includes legal drugs like Vicodin and Adderall). That would allow marijuana to be prescribed and dispensed like any other prescription drug.
But Hudak is skeptical whether the FDA or DEA would go along with such a plan. The agencies have often refused to reexamine the scheduling when petitioned, and they’re expected to resist any efforts that would make marijuana more available. And while the attorney general could start the process to reschedule marijuana even if the FDA and DEA had recommended against it, it would be a politically risky move, making it that much more likely that Biden will steer clear.
A lot will depend on Biden’s pick for attorney general, Merrick Garland, who doesn’t have a lot in his judicial history indicating a position on marijuana policy. But as an appeals court judge, Garland sided with the DEA in a high-profile 2013 case as the agency fended off a citizen’s group seeking to reschedule marijuana. As with any case, there were significant issues of precedent and agency discretion at play, but it’s another factor that has advocates nervous.
Senate Majority Leader Chuck Schumer has said he’s working on a legalization bill
There’s still an opportunity for Congress to lead on decriminalization — particularly if Biden doesn’t want to. Senate Majority Leader Chuck Schumer said in a recent interview he is working on a new federal marijuana legalization bill that lets states decide what to do and will take tax revenues from marijuana and put them toward investing in minority communities. Schumer co-sponsored legislation to decriminalize cannabis in 2018, which also sought to create a trust fund for marijuana businesses owned by women and minorities. Perez says Schumer’s stance on marijuana reform is a hopeful sign.
“If the most recent election showed us anything, it is that Americans on both sides of the aisle want a more compassionate, health-based approach to drugs over the punitive and racist systems of the past,” Perez said. Her organization has sent the Biden-Harris administration a list of priorities it wants to see addressed in the first 100 days.
“We’re working just as hard as we were last year, and there are a lot of competing priorities,” Perez said. “But I feel like we’ll have an easier path this time.”