President Joe Biden recently demonstrated the proper use of presidential clemency power when he pardoned thousands of people who had been convicted of various nonviolent marijuana violations on federal land.
The reasons he cited included addressing racial disparities in drug prosecution and sentencing, and that’s an important point. Criminal laws in theory cover all Americans equally, but in practice, laws punishing possession or use of small amounts of cannabis have been enforced over the years disproportionately against Black people. Unequal enforcement can render a colorblind law racist and an instrument of injustice. Clemency is a tool that, when wielded properly, can remediate flaws in the administration of criminal law.
It was the second time Biden has granted cannabis pardons. The first round in December 2022 covered most people convicted of marijuana use and possession. Last week’s action included many who fell through the cracks, such as those convicted of “attempted possession.”
The two separate actions are welcome but don’t correct the underlying problem. We still have federal laws and regulations that impose sanctions out of proportion to the alleged harm. Marijuana remains a “Schedule 1” drug under the Controlled Substances Act, a more serious classification than that applied to fentanyl, which few dispute is a far more harmful substance if misused. Possession and use of marijuana in the District of Columbia or on federal land can still result in prison time, at least theoretically.
The law’s defenders note that few if any people now go to prison under federal law for possessing small amounts of cannabis. But felony convictions bring lifelong consequences even to people who never see the inside of a cell. A conviction makes it extremely difficult or impossible for a person to rent an apartment, qualify for a home loan, go to college, get a professional license, get a high-paying job or even coach a child’s soccer team.
The thousands of people covered by Biden’s pardon will still have to apply for a certificate that they can present to banks, landlords and others to move beyond their marginalized position to become fully productive contributors to society. This is what they ought to have the right to do, and what all of us should want them to do. Reducing the number of unnecessarily marginalized people makes all of society safer and stronger.
Even for more serious crimes — petty theft, for example — the criminal justice system stumbles over the false binary of felony and lifelong consequences, or unenforceability. But there are obvious options in between, with consequences more rationally tailored to curb unwanted yet nonviolent behavior. People convicted of infractions or misdemeanors can be meaningfully sanctioned without facing a life sentence of second-class citizenship.
That’s how California deals with possession of dangerous drugs like heroin. An arrest gets the user into the criminal justice system or, as an important alternative, the public health system. The crime is a misdemeanor, a more reasonable and proportionate level of enforcement against behavior that as a society we want to stop, but that is not so critically dangerous that we need to marginalize the offender for life.
For marijuana, though, Californians have recognized that even misdemeanor or infraction prosecution is inappropriate. Simple possession of marijuana is no longer a crime here, nor in half the states; in fact, it’s no longer a crime in more than half the states when possession for medical use is included.
It need not be a crime under federal law either, but rather subject to the same kinds of regulations that govern possession of alcoholic beverages.
As part of last year’s pardons, Biden called for a review of marijuana’s controlled status. It’s high time for Congress to do its job and rewrite the law. Until then, proportional justice will require the president to periodically pardon people who should never have been prosecuted in the first place.
Editorial by the Los Angeles Times
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