The marijuana pardons are a part of the unraveling, bit-by-bit, law-by-law, of the “War on Drugs”—the 1980s political push that emphasized draconian punishments and broad criminalization of any interaction with drugs and contributed to America’s overincarceration crisis. In the late 1980s, inner cities experienced a complex wave of crime due in part to drug gangs, and fear gripped the public. The series of policies is now recognized as a failure, leading to decimated Black and poor communities, a system that treats addiction as a crime, and a zero-sum, impossible to win conflict that cost hundreds of billions of dollars and put politics before people.
Over the years, attitudes have changed significantly. Legislation is now catching up to public opinion. This shared undoing is bipartisan. Former President Donald Trump, along with Republicans and Democrats in Congress, undid key portions of the War on Drugs when signing the First Step Act in 2018, the most significant reforms to prison and sentencing in over 25 years.
But Biden’s recent order alone will not undo what remains of the War on Drugs, or meaningfully change the state of mass incarceration. Numerically, these pardons will only affect about 6,500 people. Moreover, last year only 149 people were in federal prison for simple possession of marijuana. Millions remain behind bars, many practically indefinitely.
To keep our drug laws on track, there’s far more that Congress and a president can do. Even if on their own, they appear small, it is the aggregate that counts.
First, Congress can follow up on part two of the president’s order, which contains a directive to federal agencies to explore rescheduling marijuana to a less serious drug with less punishment, and to ask states to take similar action. In 2019, over 500,000 people were arrested for marijuana-related offenses, with a majority for state-level offenses. Congress could classify marijuana as a much lower scheduled drug, effectively reducing criminal penalties. Better yet, it could decriminalize marijuana and leave the issue to the states. Both steps have strong bipartisan support among lawmakers and voters alike.
Next, there are several bipartisan bills pending in Congress that would continue to chip away at our broken drug law system. The First Step Implementation Act would allow judges to depart from mandatory minimum sentences for drug crimes in certain cases, while ensuring that punishments meet crimes and that our system continues to depart from the hyperbolic sentences. The SAFE Banking Act would allow financial institutions to offer banking services to the cannabis industry, helping bring a nascent but potentially job-rich industry to a legal economy in states where the drug has been legalized. The Clean Slate Act would automatically seal federal arrest records for low-level drug offenses, ensuring that those who have served their time can better get jobs and secure housing. The federal government can look to states such as Pennsylvania as an example as to how such policy works safely and grows local economies.
Finally, the EQUAL Act would bring about significant drug policy reform at the federal level by eliminating the sentencing disparity between crack cocaine and powder cocaine offenses and reverse one of the most overt racial disparities written into our drug laws. Of those incarcerated for crack offenses, roughly 90 percent are Black. The sentencing ratio is currently 18 to 1 despite no health or safety reasoning, only yesterday’s stale politics, to support the number. Politics 40 years ago originally set the disparity at 100:1 and Republicans and Democrats joined forces in 2010 to arrive at the current number, which the First Step Act made retroactive in 2018. The EQUAL Act passed the House by a resounding 361-66 vote, uniting right, left and center, and is now awaiting action in the Senate where it has 11 Republican cosponsors—enough to overcome a filibuster. Polling from earlier this year showed that three of four Americans, including 70 percent of Trump voters and 81 percent of Biden voters, believe the EQUAL Act should be signed into law. Furthermore, by a 70-20 percent margin, Americans want Majority Leader Chuck Schumer to bring the bill to the floor now.
None of these alone will reverse the War on Drugs. But each has an important role to play in doing so. Sending the above measures to the president’s desk will resolve in a fairer country with each stroke of the executive pen.
Inimai Chettiar is the federal director of the Justice Action Network, the country’s largest bipartisan organization dedicated to criminal justice reform, and former Justice Program director of the Brennan Center for Justice.
The views expressed in this article are the writer’s own.
