President Joe Biden recently pardoned thousands of people convicted of simple marijuana possession. That was the first, easy step toward smarter federal marijuana policy. The next steps will be a tougher political lift.
Here in California, people might forget that marijuana remains illegal in much of the country. Most states allow some cannabis usage, but it’s often restricted to medical purposes. Still, the trend is toward full legalization. Colorado became the first state to legalize recreational cannabis in 2012. Eighteen states and the District of Columbia have followed. In polls, a majority of Americans now support legalization.
There have been kinks along the way — problems with tax structures, licensing, encouraging people of color to open cannabis businesses, etc. — but cannabis is normalized in California and other states.
Yet use and possession remain illegal under federal law. The entire experiment relies on the willingness of the feds to look the other way.
Biden pardoned an estimated 6,500 people who were convicted under federal law from 1992-2021. Thousands more convicted under D.C. code also will receive pardons. This isn’t simply good policy, it’s the right thing to do. People of color are disproportionately convicted of possession.
Biden’s pardons applied only to federal convictions. Millions of people have been convicted under state laws. He therefore encouraged governors to follow his lead and grant pardons.
California voters legalized recreational use of marijuana in 2016, and a state law passed two years later called on authorities to clear convictions for possession, use and cultivation of marijuana. A law passed this year is intended to expedite the process of expunging people’s records.
If Biden wants to do more — and he does — he needs Congress’ help. Ending federal prohibition requires removing cannabis from the Controlled Substances Act, and that’s not something a president can do unilaterally. Congress hasn’t gotten there yet, though support seems to be building. When it happens, states would be free to set their own laws.
In the meantime, there are steps that could assist states like California that have legalized cannabis. Most important, federal law prevents banks from serving the cannabis industry. Dispensaries and shops are all-cash businesses, which makes them targets for criminals and limits the ability of regulators to follow the flow of funds.
Access to banking would allow sellers and growers to accept credit cards and securely transfer funds, including taxes owed to the government, just like any other business. Multiple congressional bills have been introduced to accomplish this, but none has yet passed. Biden’s support might help.
A bill introduced last month by Rep. Jared Huffman, D-San Rafael, would allow small, licensed cannabis operators to sell and ship their products directly to consumers, including across state lines as long as cannabis is legal in the destination state. While there’s some sense to it — vineyards can ship wine to other states, after all — allowing mail-order-marijuana will be a tough sell to skeptical lawmakers.
California and other states are moving ahead with legalization and development of a legal cannabis market, a trend that seems unlikely to be reversed, but one that has been impeded by conflicts with outdated federal laws. Pardons are great, but Biden must continue to lead and push Congress to finally change federal law.
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