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Commentary: Will Biden’s Marijuana Pardon Impact Racially Disparate Arrests?

By Chrisleen Herard

President Joe Biden has signed an executive order pardoning thousands of Americans who have been federally convicted for a “simple” marijuana possession charge prior to October 6th, 2022. But does this means the smoke of disproportionate arrests and unreasonable and sometimes “mandatory minimum” sentencing is beginning to clear for Black inmates who remain behind bars under additional and state-level charges?

“As I’ve said before, no one should be in jail just for using or possessing marijuana,” President Biden tweeted, “Today, I’m taking steps to end our failed approach.”

Marijuana is a psychotropic drug that temporarily changes the natural state of the mind. It consists of two main chemical elements, tetrahydrocannabinol (THC), the mind-altering component, and cannabidiol (CBD), the “sedative” component that contains medical benefits for health issues such as: Anxiety, insomnia, chronic pain and even addiction, according to Harvard Health.

The Controlled Substance Act of 1970 categorized a plethora of drugs into five different “schedules” based on its “medical use, potential for abuse, and safety or dependence liability.” The statute then further regulated the manufacturing, possession and distribution of those drugs under federal law.

Marijuana, classified as a Schedule I controlled substance, stands out on the list alongside heroin, ecstasy, LSD and peyote — drugs like cocaine, fentanyl and meth are classified as Schedule II — meaning that the drug is defined to have no medical purposes in the United States and has high potential for abuse, (despite marijuana being legal and used for medical purposes once before from 1840 to 1900, and even now in 37 states).

“I am asking 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,” Biden wrote. “This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic.”

Marijuana was listed in the Federal Narcotics Control Act of 1956 before being labeled a Schedule I controlled substance in 1970 where it has since remained. 

However, President Richard Nixon, who signed the Controlled Substance Act, formed a marijuana committee in 1972 that recommended he decriminalize the plant — this has enabled strong federal regulation, enforcement and penalties for those who use, possess and distribute the drug.

Nonetheless, there continue to be several debates surrounding the uses and consequences of marijuana: Whether or not it causes cognitive deficiency in the brain; if pregnant women can ingest it without harming their unborn child; and if it’s a gateway drug that leads to a darker path.


While studies always show that there are simply not enough studies to prove any of these cases one way or another, one finding that statistics have consistently shown is that the majority of users who are put in jail for marijuana charges lie within the Black community.

“Criminal records for marijuana possession have also imposed barriers to employment, housing, and educational opportunities,” Biden’s executive order read, “And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.”

According to a 2020 report conducted by the American Civil Liberties Union (ACLU), Black people are more than 3x more likely to be arrested for marijuana possession than white people.

The report also found that back in 2018, when 43.5 million Americans reportedly smoked cannabis, 17.8 percent of users who smoked in that past year were Black and 16.5 percent were white, however in terms of lifetime use, 42.4 percent of users were Black and 50.7 percent were white.

In spite of this, the ratio between Black and white people that are arrested are inconsistent, as well as the sentencing for those convicted.

Kevin Allen was sentenced to two 10-year prison terms after selling $20 worth of marijuana to a childhood friend, who was working as an informant for a narcotics task force in the area. Prosecutors then brought attention to Kevin’s prior convictions in 2004, 2007, 2011 and 2014 of possession and intent to distribute before offering him a second 20-year plea deal. But Kevin, who is a father of two and had a job at the time, attempted to fight this, later regretting not taking the offer as his sentence was ultimately raised to life-without-parole. Unfortunately, Kevin is not the only one.

But with America’s growing support for marijuana legalization, and Biden’s recent executive order, some are hopeful that these are steps to decriminalizing the most commonly used federally illegal drug in the United States, and Biden calls for state governments to do the same.

Kassanda Frederique, executive director of the Drug Policy Alliance, stated, “This is incredibly long overdue. There is no reason that people should be saddled with a criminal record—preventing them from obtaining employment, housing, and countless other opportunities—for something that is already legal in 19 states and D.C. and decriminalized in 31 states.”

Others, on the other hand, believe Biden’s pardon was an election tactic to increase future votes, especially in the young and Black demographics, as the midterm elections draw near.

Asa Hutchinson, the Republican Governor of Arkansas, said, “Biden is simply playing election-year politics and sacrificing our national interest to win votes.”


However, according to a Vox article, David Holland, litigation attorney and president of New York City’s Cannabis Industry Association, believes that President Biden is simply trying to make a progressive step in the right direction.

“Biden doesn’t stand to gain anything by it, per se. This is only the midterm; he’s got another couple years to go,” Holland said, “I think he’s trying to align himself with progressive politics that undo at least some of the harms of the drug war, and to set up a platform for two years from now that shows him to be a leader in causes relating to equity, justice, economic development, and so on.”

Biden’s pardons have changed the lives of 6,500 Americans who have been convicted of simple marijuana possession on a federal level. Though none currently remain in prison, 6,500 people are now able to apply for a job, rent an apartment and explore educational opportunities without the stain of a felony conviction on their record.

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