President Joe Biden has been clear in the past that he is not gung-ho about legalizing cannabis for recreational use. The 46th President has said that he wants to study the product more thoroughly before making any final decisions about allowing its use. White House Press Secretary Jenn Psaki has reaffirmed this, even as fellow Democrats work to move forward on legislation that would legalize cannabis. 

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Moreover, a recent report from the Congressional Research Service says the President may not even have the power to legalize marijuana for recreational use, and either way cannot compel individual states to adopt federal law. Instead, the President could either direct federal agencies to consider either re-classifying its scheduling so that it could be sold and possessed legally, just like many other scheduled drugs, or order the feds to change how they enforce marijuana laws, telling the DOJ not to prosecute certain marijuana-related crimes. 

That said, President Biden has vowed to decriminalize marijuana at the federal level and work on sentencing reform, which would fall into the guidelines stipulated by the CRS. Biden’s own website states: “Biden will work with Congress to reform federal sentencing and provide incentives to state and local systems to do the same. He will end, once and for all, the federal crack and powder cocaine disparity, decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions, and end all incarceration for drug use alone and instead divert individuals to drug courts and treatment. He will work to eliminate mandatory minimums and the death penalty.”

In 2020, the ACLU said Black people are 3.64 times more likely than their Caucasian counterparts to be arrested for marijuana possession. That discrepancy is true in every single state, and in some areas, the numbers rise to “ten times more likely.” The problem hasn’t gotten better, either, the ACLU says: in 2018, the racial disparities were worse than they were in 2010 in 31 different states. 

President Biden also vows to “end the criminalization of poverty” as well as “stop corporations from profiteering off of incarceration” and “eliminate existing barriers preventing formerly incarcerated individuals from fully participating in society.”

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Decriminalization vs. Legalization

Decriminalization is different from legalization. 

Legalization, the National Institutes of Health says, is “the process of removing all legal prohibitions against [marijuana].” 

That would make cannabis available for purchase and use by anyone in the United States over the age of 21, just like alcohol.

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In contrast, decriminalization would mean the product, including its sale and use by anyone other than those with medical licenses approved by a physician, would still be illegal. However, you could not be prosecuted for mere possession of small amounts of marijuana. There could be either no penalty, civil fines, or mandatory drug education and treatment as long as the amount a person is caught with is small.

A person in a jail cell with their hands on the bars Source: Shutterstock
That means that technically, “legalized” marijuana laws voted on by individual states do not actually legalize the drug, since it’s still illegal at the federal level. Instead, they are decriminalization laws that give the green light to sell and purchase cannabis in various forms. 

Proponents of legalization, like Senators Corey Booker (D, NJ) and Chuck Schumer (D, NY) still support that decision overall, approving more of the decision to take a first step than no step at all. Senate Majority Leader Schumer says when it comes to federal decriminalization, it’s all about semantics and would ultimately have the same affect. 

“I support decriminalization at the federal level, and we’ll be introducing legislation with a few of my colleagues shortly,” said Schumer. “Decriminalization, legalization. At the federal level, you call it decriminalization, because that lets the states legalize,” Schumer said in the past. 

What’s the Hold Up?

So if decriminalization is on Biden’s to-do list, why hasn’t he got a move-on? It’s been eleven months since a group of 37 members of Congress mailed President Biden a letter urging him to start taking steps toward reform and issue pardons for people convicted of federal marijuana crimes. President Obama granted clemency for some 1,927 people whose charges fell under that same umbrella, the Congressional group pointed out, following the lead of every president since George H.W. Bush. 

More recently, a duo of Republican lawmakers who chair the Congressional Cannabis Caucus also criticized President Biden for his lack of action. 

In July of 2021, Reps. Dave Joyce (R-OH) and Don Young (R-AK) sent the President a letter arguing that marijuana’s classification as a Schedule I drug has “caused significant research restrictions and continues to thwart the treatment of a wide range of patients, including those suffering from cancer as well as veterans with post-traumatic stress disorder (PTSD) and people living with Multiple Sclerosis and seizure disorders.” 

The two never heard back, and now are speaking up about it. They sent another letter, this one more strongly worded: “As both legislative chambers continue to debate the merits of various common-sense proposals on the issue of cannabis reform and a complete end to federal prohibition garners more and more bipartisan support, your administration’s absence from these debates and lack of action, which is inconsistent with previous statements you have made on the topic, is of serious concern.” 

The Brookings Institute brought up a couple theories as to why the President has been slow to act and has only spoken conservatively about marijuana legalization. 

Their first theory is his age: a Pew Research Poll shows that Joe Biden’s age group, the Silent Generation, is the most opposed to marijuana of any age cohort. The poll states only 32% of Americans aged 75 and older support recreational marijuana legalization. Every other age group has majority support for adult-use legalization. For those 18-29, support falls at a whopping 70% and it’s 65% among those aged 30-49.

The second theory from the Brookings Institute is that Biden’s personal history may be coming into play. The President’s son Hunter Biden has gone through a very public struggle with substance abuse and alcoholism, and researchers at Brookings speculate that bearing witness to his son’s issues may be tainting his view of legalization and its possible risks. 

Recent studies show the theory that marijuana could be a “gateway drug” — one that encourages people to move from the use of marijuana to dabbling in more dangerous drugs — is likely not accurate. The U.S. government’s own National Institute on Drug Abuse concedes,

“The majority of people who use marijuana do not go on to use other, ‘harder’ substances. Also, cross-sensitization is not unique to marijuana. Alcohol and nicotine also prime the brain for a heightened response to other drugs and are, like marijuana, also typically used before a person progresses to other, more harmful substances.