Understanding Biden’s Marijuana Action

written by Aadit Agrahara

A historic moment in U.S domestic policy just occurred: President Biden has officially begun the scheduling process for marijuana, pardoning simple possession cases, and calling for state governors to pardon state level simple possession cases.

Why is this historic? Many states not only have descheduled the drug, but have legalized it. States such as California, Colorado, and New York have allowed marijuana to be sold and consumed for recreational purposes. In fact there are more states that permit marijuana use than ban it. The reason why this legislation is key is that the Biden administration has done something that no administration has: decriminalize drugs from a federal level.

Let’s back up. To fully understand the significance of this executive action we need to understand the history of marijuana regulation. The starting point, like most drugs, begins during the War on Drugs that dominated much of the latter of the 20th century. During this time, there was a nationwide fear of drugs and the cartels that were responsible for its distribution. What first started as small Colombian cartels trafficking Marijuana across the border became multi billion dollar empires trafficking cocaine.

The flood of drugs entering the country did have tangible impacts on American communities — specially poor, black neighborhoods. However crack cocaine, and heroin were the dominant drugs as marijuana faded into obscurity.

Drug regulation isn’t a constitutional duty for the federal government which in theory would allow for the states to regulate it. However the Supreme Court case, Gonzales v. Raich(2005), ruled that because marijauna can be transported and sold across state lines, per the commerce clause, the federal government is allowed to regulate it. Unfortunately, executive action grouped marijuana with these other more potent, dangerous drugs and thus began the decades of criminalization and marginalization.

The way the U.S tackled drug regulation was through foreign interventions from the CIA throughout Central America and domestic regulation from the DEA. This was where scheduling was born. Drugs became categorized based on potency and health benefits. They were structured from schedule 5 which were the least potent — which are the majority of over the counter medicines — to schedule 1 which are banned medicines. The schedule 1 tier contains: heroin, marijuana, LSD, and peyote.

The scheduling that the DEA was responsible for enforcing was the furthest thing from consistent. The drug that was responsible for destroying generations in the poorest communities in America — crack cocaine — was scheduled under drugs such as marijuana, and heroin.

Now we have arrived at Biden’s executive action. The Biden administration has not clarified where they will place mirajauna which means that legalization is very unlikely. Most likely it will be moved to schedule 3: a tier that will require heavy regulation and prescriptions which would align with the science behind marijuana.

However the most important is the pardoning of simple possession cases at the federal level. Simple possession is defined as having enough of a substance to consume but not to sell or give to someone else. This means that dealers and traffickers will not be the beneficiary or this pardon. What it does do is allow those who were victimized by the drug to seek relief.

Over 6,500 people from 1991–2021 were convicted on the federal level for simple possession. However thousands more are convicted on the state level. If the Biden administration chooses to expand this pardon to non violent drug offenders thousands more could be released from their prison sentences.

Unlike the Obama administration that used political statements to signal a shift away from criminalization, the Biden administration has used executive action to create a clear position on marijuana which can pave the way for future legalization and decriminalization policies.

In the next post, we will discuss Big Pharma’s role in marijuana regulation.

Written By Aadit Agrahara an undergraduate student at Michigan State University James Madison College

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