Statement from President Biden on Marijuana Reform

A majority of GOP nominees — 299 in all — deny the 2020 election results.

And, continues to be a nail-biter (from what I can tell, some analysts still favor the anti-republicans for the House while saying the Democrats are favored in the Senate -- yeah! impeachments and pointless trials here we come!)/ There is a certain insanity and tired "how are we still in this state with all that came out" thoughts.  Explanations, including institutional aspects that run against democracy, help one's mood only a little. 

The fight continues, including the fighting loyal women in dissent at the Supreme Court.  One "truth telling" grumpy labor/environmental studies professor said dissents don't matter there.  I'm unsure how a labor historian takes that approach to the power of protest.  Anyway, I basically agree with this take regarding Justice Jackson using what might be called "liberal originalism" this week.  I would add that -- some cheers regardless -- it is not like she rested on that alone.  It's a quiver in the bow.  

When President Biden had his speech about democracy, he ended it with a message of what is possible using our democratic system.  This included some things that Republicans joined in with such as an infrastructure bill.  This part annoyed some who wanted him to focus on a "neutral" message of supporting democracy.  I was not really convinced since part of democracy is practical.  You have to show it working.  

President Biden among other things promised to address marijuana reform while not being as far left on the issue as some in the party. This is a theme since Biden is sort of a median bellwether and put himself out there all of this career [I'm reading a book about his relationship with Obama and this theme came up and apparently he followed it back from the 1970s, which is logical for a border state politician.]  But, the median have moved far.

NORML Issues Statement Regarding President’s Plan to Pardon Those with Low-Level Marijuana Convictions

When a marijuana refrom organization praises Biden, you sort of figure it might be a BFD (or at least a pretty big one).  Douglas Berman, a sentencing law expert who has been somewhat negative about Biden (his Trump v. Biden/Obama takes helped me to eventually stop reading his blog, not helped by his snarky and at times simply non-responsive takes of my comments) had this to say:

This is very big news (though not quite massive news), with lots of formal and informal ripples for criminal justice systems and sentencing.  The legal, policy, political and practical consequences of these moves are going to be fascinating (and a bit unpredictable, I suspect).

A follow-up post cited this:

The executive action will benefit 6,500 people with prior federal convictions and thousands of others charged under the District of Columbia's criminal code, according to senior administration officials.  Elaborating on the number of people affected, officials said "there are no individuals currently in federal prison solely for simple possession of marijuana."

The statement showed -- as is typical -- a carefully crafted approach the provided some moderation mixed with significant policy.  A rather unsurprising (if somewhat depressing) caveat is that undocumented immigrants are not covered.  The exact language is "citizens and lawful permanent residents," which makes one wonder about "Dreamers." 

The "ripples" statement is an important theme here and that principle can be seen in various major moves.   One part of the announcement is that he tasked the relevant people to re-examine scheduling of marijuana, which as seen in part by Gonzalez v. Raich (medical marijuana) is a basic way drugs are regulated in this country. And, treating marijuana akin to heroin and the like there is absurd.  

Total reform of the law is of course left to Congress, and from Chuck Schumer on down, big change has a lot of support. And, then there are states, which include New York now, which are starting to legalize marijuana.  I might actually have to use or consume the stuff at some point. Well, I did use hemp products (including milk), so I guess that counts?  It seems weird there to have states legalize and set up bureaucracies when the drug is still illegal under federal law, if not enforced in various ways.

While we are in the middle of a lot of insanity, we continue to try to be sane.  A few years ago, if by 5-4, our Supreme Court recognized the basic sanity of allowing same sex marriage.  This was a result of a nation-wide movement, led in some ways by the Obama Administration (who supported a challenge to DOMA), and there is still a promise that it will be protected by national legislation after the election in November.

So why not marijuana?  It is remarkable on some level (as usual, only so much) that we have not reached some settlement before now. My thought there would be a local option for at least medicinal marijuana. There was a budget provision that removed funding of prosecution of certain marijuana offenses that did not violate local law.  This was a few years back and it's hard to keep track on the status though it seems to be in place still.

One cranky conservative in comments to the Berman post said that Biden should pardon those who were convicted of possessing harder drugs. As a matter of sane policy, criminalization of simple possession is not very sane. But, marijuana still is not meth or heroin.  There is a middle ground there. And, marijuana has various uses such as changing conscious (with religious implications), pleasure, health, and general anti-establishment messaging. 

In my book Joe's Constitution, I explained the many constitutional issues raised by our drug policy.  I also noted something I continue to think we should emphasize, these things are not just a result of the courts.  We set up a three-part system of government here to carry out the ends of the preamble of the Constitution.  I appreciate Biden's role in this. 

[I have a copy of a short article by Justice Tom Clark, from the 1970s, supportive of a liberalized marijuana policy. It includes a suggestion that possession of marijuana is protected by the right to privacy.  There was also a state court opinion back in the day from Alaska saying so.]

As usual, this is all TO BE CONTINUED.

ETA: It looks like the bar of appropriations to the DOJ regarding state laws that allow medicinal marijuana (New York, for instance, allows general use) is still in place.  How far it goes is still unclear. More on the marijuana pardons etc. is covered by a new Dorf on Law piece.