Biden Goes to Pot

Ahead of the midterm elections, the president issues a blanket pardon for those convicted of the federal offense of simple possession of marijuana.

Cannabis leaves
Getty; The Atlantic

Joe Biden is an unlikely stoner hero. Three of his four Baby Boomer predecessors in the Oval Office had explored marijuana in their youth, but by the time they became president, they all disdained the stuff. But Biden, like Donald Trump, was a straight-edge who says he never touched marijuana and was skeptical of any liberalization of drug laws throughout his long career in politics.

You don’t get to have a long career in politics, though, unless you can tell which way the wind is blowing—and detect the aromas it carries. That explains Biden’s announcement Thursday that he will pardon all federal offenses for simple possession of marijuana and seek to have the drug removed from Schedule I, the highest classification of dangerous substances the federal government maintains. He also called on state and local governments to free prisoners locked up for weed possession.

Biden’s move seems timed to coincide with the midterm elections (though not with internet humor: He tweeted the news out at 3 p.m., when he could easily have waited another hour and 20 minutes.) Though some people have reservations about specific changes to marijuana laws, the decision will likely be popular. Most Republican lawmakers still don’t back loosening restrictions on cannabis, but Republican voters are happy for you to pass the dutchie to the right, or at least the center-right.

Not long ago, pot was politically dangerous, which is one reason that Bill Clinton insisted, risibly, that he had tried marijuana but not inhaled. When Clinton was president, only about a quarter of the population supported legalizing marijuana. Times have changed. Different pollsters get slightly different answers depending on how they ask the question: Gallup found 68 percent of Americans favoring legalization in 2021, while Pew Research found that nine in 10 support either recreational or least medical use. Most Americans live in a state with some form of legalization, and nearly half can consume recreational cannabis legally.

When Washington and Colorado approved recreational marijuana in 2012, it was a massive news story. Now, a new state-level liberalization is unlikely to make the national news. Even the dowdy New York Times endorsed legalization nearly a decade ago—something akin to your parents trying to pass you a joint.

The real question is why it has taken so long for the federal government to act. One clear culprit is the American gerontocracy. Half of the Baby Boomers, Gen X, and Millennials say they’ve tried weed, but only one-fifth of Biden’s generation has, and the people who end up in elected office tend to be more cautious in their personal habits. With less personal experience, these politicians are slower to accept legalization.

Politicians who have been around a long time have also seen the movement hit enough potholes to be hesitant about embracing legalization. As I noted in 2014, there was a moment in the late 1970s when weed laws seemed destined for the ashtray of history. Both the Times and National Review called for decriminalization, and the share of the population supporting legalization was on the rise. But then opinion turned, and support stayed low for decades. As chair of the Senate Judiciary Committee, Biden had a front-row seat when revelations of past marijuana use torpedoed the Supreme Court nomination of Judge Douglas Ginsburg. Biden also saw the popularity of tough-on-drug laws and helped author some of them.

Biden has remained cautious, and during the 2020 Democratic primary was the only candidate not to favor rescheduling cannabis. But the pro-pot portion of the populace is large enough that opinion now seems unlikely to turn. Even so, the Democratic-led Congress has failed to move forward on rescheduling, which seems to have led Biden to his announcement today. (Whether his call for the attorney general and secretary of Health and Human Services to review marijuana’s status actually ends up in a change remains to be seen.)

The immediate impact of the move may be limited. As the criminal-justice scholar John Pfaff quickly pointed out, the pardons likely apply to a tiny fraction of federal prisoners, who are themselves just a small fraction of the incarcerated population. Adding in those who have since been released, the administration says the move will affect thousands. But just as harsh federal sentencing guidelines for marijuana once set the pace at the state level, Biden says he hopes his pardons will inspire governors to act as well.

This makes today’s announcement an example of leading from behind, to borrow a phrase from the Obama administration. Biden hasn’t always been in this position. In 2012, as vice president, he unexpectedly announced during an interview that he supported gay marriage. The comment was seismic, and it effectively forced President Barack Obama to become a supporter of gay marriage as well. (Or rather, it forced Obama to acknowledge his real views; the president had been pretty transparently lying.)

At the time, just 50 percent of the public agreed with Biden and Obama. But the following year, the Supreme Court struck down the Defense of Marriage Act, and in 2015 the justices established a right to gay marriage. The government—both the executive branch and the courts—was ahead of popular opinion, but the public followed, and now more than 70 percent of Americans support gay marriage.

Biden’s experience on marijuana has been the opposite. Rather than leading the public, he—and the federal government as a whole—is being nudged to accept the will of the large majority of Americans. Whether or not encouraging Americans to spark one sparks a Democratic vote in November, approval for his announcement is likely to be, well, high.