After continued pressure from Democrats, the Biden administration has taken a stance on what they want the future of American drug policy to look like. Announced Thursday, the president’s executive order pardoned all prior federal offenses of simple possession of marijuana, and announced new efforts to pressure larger state reforms. But according to drug advocacy groups, the narrow scope of the pardon means that even with thousands helped, tens of thousands more are getting left out of the conversation.
The new pardon is focused specifically on federal charges of possession — which mean a person was caught with a small amount of weed, and police considered it for personal use. The order also announced plans to reschedule marijuana, which would expand the drug’s ability for research potential and medical use. Coming from a politician who made a name for himself early on in his career as a tough-on-crime candidate, Biden’s executive order has been seen as a direct, and potentially historic, shift in policy. While full data on the exact number of people affected isn’t available, there have been at least 6,000 people who have received a possession conviction since 1992 and would qualify for the pardon. But none of them are currently incarcerated, according to White House officials. And with at least 40,000 Americans currently behind bars for weed charges, policy experts say the pardon is leaving out the people who need it the most.
“On the federal level, it is incredibly rare that someone will be charged with simple possession,” says Sarah Gersten, executive director of the Last Prisoner Project, a nonprofit focused on cannabis criminal reform. “The vast, vast majority of simple possession charges happen on the state level. So we have been pushing the Biden administration to grant clemency and a reduction of sentence for those still incarcerated federally for cannabis. Those would obviously be people that would be granted the most relief.”
When discussing the benefits of a more lenient drug policy, Biden called the executive order an attempt to end the country’s “failed approach” to policing drugs — emphasizing the long-term, and often detrimental, effect of having a record and the discriminatory way drug policies disproportionately impact communities of color. “There are thousands of people who were previously convicted of simple possession who may be denied employment, housing, or educational opportunities as a result,” Biden said Thursday. “My pardon will remove this burden.”
But Cynthia Rosenberry, Acting Director of the American Civil Liberties Union’s Justice Division, says the social and emotional burden of imprisonment can be even harder– something the pardon doesn’t currently address.
“I remember a woman, who had served a 10-year sentence, saying she didn’t know how to wash her hands in a bathroom because there were automatic faucets,” Rosenberry says. “The connection she lost with her children, family members died while she was in prison — she felt dehumanized again, even outside of the prison walls. These long sentences, just taking someone out of society and plopping them back in afterwards, it’s almost like putting them on an alien planet, because things have changed.”
Rosenberry says that people of color often receive harsher prison sentences than their white counterparts, and adds that the lack of an expungement still leaves people who qualify for the pardon with a visible record — and vulnerable to potential discrimination.
“This pardon doesn’t expunge [charges] from the record,” says Rosenberry. “So a person could say ‘I’ve received a pardon,’ but that’s going to come up in their record and their background check for jobs. So while a pardon is supposed to imply redemption, it really depends on the employer or the prospective creditor who might look at that and say, ‘You still committed that crime.’”
Gersten tells Rolling Stone that the rapid growth of the marijuana industry is a grievous injury to those still serving time, especially for a drug that has been legalized in at least 19 states. Yet she calls Biden’s executive order, while limited, evidence that national opinion surrounding drug reform is changing every day.
“We really feel that having people that continue to be incarcerated for cannabis, even something beyond simple possession, is truly the height of injustice,” Gersten says. “What adds to that injustice, is that the majority of people profiting off of cannabis are white individuals, and the collateral consequences of that are black and brown communities. This is really monumental and historic in that Biden is value signaling that this is something that the nation cares about. So we, as an organization, are going to leverage that momentum to hopefully get to those broader reforms.”
Even with the small range of Biden’s executive order, nonprofits don’t want people to think that the pardons are entirely meaningless. Instead, they’re hopeful that further changes by the administration can directly help those unfairly imprisoned — and open others’ eyes to the human toll of incarceration.
“We’re grateful for these orders. It is a very small first step and there are a myriad of people who need this kind of help,” Rosenberry says. “But this harm that’s been caused to largely black and brown communities won’t be remedied by this pardon. There has to be wraparound services for people to help them reintegrate into society. We have to remember that that people are not disposable.”
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