Presidential pardon signals shift in federal drug policy
Granting clemency for simple possession of marijuana is an important step away from a war on drugs that unfairly affects people of color, says Carolina civil rights expert Theodore M. Shaw.
President Joseph Biden on Oct. 7 announced a mass pardon for those convicted of a federal crime for simple possession of marijuana — about 6,500 people.
Biden’s fulfillment of a 2020 campaign promise was seen as an attempt to redress harsh punishments for drug-related crimes that disproportionately impact people of color. Black people are 3.6 times more likely than white people to be arrested for marijuana possession, despite similar usage rates, according to an analysis conducted by the American Civil Liberties Union.
The mass pardon is also viewed as a step toward decriminalization of marijuana possession. Biden said his administration would review if marijuana should still be classified to be as dangerous as heroin, LSD and ecstasy.
Because of the racial disparities in how marijuana possession is prosecuted, The Well asked civil rights expert Theodore M. Shaw to answer questions related to the recent mass pardon. Shaw is the director of the UNC Center for Civil Rights and is the Julius L. Chambers Distinguished Professor of Law at the School of Law.
Why is this mass pardon important, particularly from a civil rights perspective?
We know that our criminal justice system is one that disproportionately arrests, charges, prosecutes, convicts and incarcerates Black and brown people as compared to other people, but particularly white folks. The so-called war on drugs has been a war on Black and brown people more than anything else. So there are civil rights implications as a consequence. And this action, I think, is important just because of the impact on Black and brown people.
Marijuana usage in this country is ubiquitous, and it’s no less of a phenomenon in white communities than it is in Black communities. Some statistics have indicated that white people may even use marijuana and other drugs in slightly higher proportions than Black people, but the criminal justice apparatus isn’t put into effect when it comes to those kinds of violations for white people as often or to the same degree.
What does a pardon mean for those who received it?
It means that their punishment for the violation is set aside. To the extent that there are federal penalties, those all are lifted and disappear. It does not mean that all the records of a violation of the law disappear. But the punishment is set aside, so the effect on individuals is huge. They don’t live under the albatross of punishment any longer. But these are actions that impact federal offenses. They have no impact on any state violations.
Most marijuana convictions happen at the state level, and Biden urged governors to issue the same pardons as he did. Is this likely?
Unfortunately, very few things get accomplished in Washington these days because of the partisan divide. A president doesn’t have the kind of sway with governors from another party that he has with his own party. So it’s more likely that Democratic governors would be the ones to use their pardon authority.
Does Biden’s pardon mean marijuana will soon be decriminalized throughout the United States?
We already see a movement toward decriminalization of marijuana usage. Some states have not only decriminalized marijuana usage, but they also have legalized the sale of marijuana. With respect to federal law, this mass pardon effectively points to taking away the punishment. How do you pardon people for those kinds of violations and not point toward the decriminalization of marijuana usage by individuals under federal law?
What are the next logical steps in handling the problem of drug usage?
I would treat drug usage more as a public health issue as opposed to a criminal justice issue. And I would end the so-called war on drugs, which has been a war on Black and brown people. The war on drugs has been an abject failure. I’m not an advocate of mass incarceration as a remedy for the issues that drug usage presents.
In recent years, we’ve seen more harmful drug usage, including heroin, crystal meth and prescription opioids. We’ve seen more white people using these drugs, and we’ve seen more compassion and a movement to treat this usage as a public health problem instead of incarcerating people and stigmatizing them for their usage of drugs. I’m just pointing out that there’s been a very different reaction, and we need to treat people with fairness and equity in the criminal justice system.
