Pardons, descheduling and the DEA: Making sense of Biden's weed actions

President Joe Biden’s mass pardon Thursday of thousands of cannabis offenders and push to review marijuana’s status under federal law is potentially the biggest shift in federal policy in more than half a century.

The move is particularly striking for the former senator who was instrumental in ratcheting up drug-related incarceration in the 1990s, and whose administration has punished employees for marijuana use.

But some cannabis advocates question whether the sweeping pre-election decision will actually accomplish much.

“This is a really major change of pace for him [on cannabis policy],” said David Holland, an attorney at Prince Lobel Tye in New York who has worked on clemency applications for federal marijuana prisoners and a petition to move cannabis to a less restrictive category. But “this is so small in the world of restorative justice in cannabis.”

Here’s a look at what Biden’s executive actions do — and don’t do — and what it could mean for America’s burgeoning multi-billion-dollar marijuana markets.

Biden’s drug policy evolution

Biden long cast himself as a drug warrior during his time in the Senate. In 1989, he criticized George H.W. Bush’s anti-drug plan as “not tough enough.”

He then went on to play an instrumental role in the 1994 crime bill that helped dramatically increase incarceration rates for drug offenses in America. It included sentencing provisions like the three-strikes rule that state governments also adopted, which had a big impact on drug incarceration rates, including for marijuana offenses.

That history followed Biden into his campaign for president, which Democratic primary opponents latched onto as an indication that he was out of step with the American public.

During the campaign, Biden said he supported moving marijuana from Schedule I to Schedule II in the Controlled Substances Act. But he also said he supported decriminalizing marijuana use, which advocates expressed confusion over — given that cocaine is a Schedule II substance and still very much criminalized.

The Biden administration also infuriated cannabis advocates last year when the Daily Beast reported that “dozens” of young White House staffers had been suspended, asked to resign or placed in a remote work program after admitting to prior marijuana use.

Who gets a pardon? 

While presidents have the power to grant pardons and clemency through the U.S. Constitution, the type of blanket pardon Biden used is not very common.

President Gerald Ford issued blanket amnesty in 1974 to Vietnam War deserters. And in 1977, President Jimmy Carter granted unconditional pardons to hundreds of thousands of Vietnam War draft dodgers.

Biden’s action is limited to people with federal convictions for simple possession of marijuana, which a senior administration official estimated will affect about 6,500 people.

But the vast majority of people who have been negatively affected by federal marijuana enforcement are those who were convicted of more serious crimes, like trafficking and distribution. While Biden has said that no one should be locked up for using marijuana, there are few people — if any — currently incarcerated solely for a federal marijuana possession charge.

The vast majority of people locked up for marijuana possession were convicted at the state level. Biden’s order also calls on governors to issue pardons for state marijuana possession offenses, but the president has no authority to compel them to act. Many states that have legalized marijuana have already taken steps to scrap old convictions for marijuana crimes. Illinois Gov. JB Pritzker, for example, issued pardons for more than 11,000 marijuana-related convictions at the end of 2019.

How would Biden’s action impact those who receive pardons? 

People with criminal records also often face discrimination when it comes to accessing housing, jobs or educational opportunities. “This pardon will help relieve those collateral consequences,” the senior administration official said.

But advocates question whether that’s true.

“A pardon still leaves all the [criminal] records intact,” said Craig Cesal, who served 19 years in federal prison for marijuana-related crimes and now advocates for other people with cannabis convictions. He was granted clemency last year.

Their record could still hurt employment opportunities, Cesal explained, like getting approval to transport hazardous materials under a commercial driver's license.

Biden has directed Attorney General Merrick Garland to develop an administrative process to issue certificates of pardon to those eligible, according to the senior official.

But that isn’t exactly an easy lift. There is no central database of federal marijuana offenders. State and local prosecutors have also run into trouble trying to automatically expunge cannabis-related criminal records.

Can Biden unilaterally loosen federal restrictions on marijuana?

No. Biden instructed the attorney general and Health and Human Services Secretary Xavier Becerra to start the process of reviewing marijuana’s status under federal law.

There are two other ways the federal government could decriminalize marijuana. Congress could pass a law doing so since it created the Controlled Substances Act, where marijuana is classified as Schedule I, defined as having no medical use and high potential for abuse. Heroin and LSD are also Schedule I drugs. In addition, a citizen can petition the Drug Enforcement Administration to review marijuana’s scheduling.

While Biden can ask the attorney general to start the review, his power to dictate the details is severely limited. Now, the Food and Drug Administration and DEA will decide how to proceed.

What’s the rescheduling or descheduling process?

When the agency heads initiate the review process, the task is delegated to the DEA and FDA.

The FDA’s role is to go through a scientific and medical analysis and to make a recommendation on scheduling to the DEA. The agency’s determination hinges on three factors: currently accepted medical use, the potential for abuse, and a drug’s addictive tendencies, explained Shane Pennington, an attorney at Vicente Sederberg who has been litigating challenges against DEA's marijuana classification for several years.

While alcohol and tobacco certainly have abuse potential, those drugs have statutory exemptions from the CSA.

“On matters of science and medical issues — the FDA view trumps DEA,” Pennington said.

But the DEA has discretion to overrule the FDA’s recommendation in certain situations, including whether it thinks a scheduling decision might run afoul of international drug treaties.

What happens next? 

If the DEA and FDA do decide there is enough scientific evidence to warrant a change in marijuana’s federal status, pro-legalization advocates worry that the drug may be moved to Schedule II or Schedule III, instead of being removed from the CSA entirely.

That could potentially jeopardize existing state-regulated marijuana markets, because it would put marijuana in the purview of FDA drug regulations. Existing Schedule II drugs include cocaine, fentanyl and methamphetamine, while Schedule III drugs include ketamine and anabolic steroids.

“Biden is trying to signal what is going to be a paradigm shift and policy shift at the White House in the next two years,” Holland said.