Earlier this month, President Joe Biden released a three-prong plan to fulfill a campaign promise to roll back punishments for people convicted of marijuana possession.
He pledged to pardon everyone convicted in federal or Washington, DC courts of simple marijuana possession; encouraged governors to do the same for those convicted in state courts; and he promised he would ask his Secretary of Health and Human Services to examine rescheduling marijuana under the Controlled Substances Act
As many were quick to note, the plan’s immediate impact will likely be slight, at best. No one is in federal prison on marijuana possession charges, and though the White House said perhaps 6,500 people may have marijuana convictions pardoned, the plan will have little effect for those who also have any state conviction or any other federal conviction. Rescheduling may lead to some improvements in how we treat marijuana, but cocaine and methamphetamine are among the drugs in Schedule II, and both are still subjected to heavy criminalization.
Nor is it likely that marijuana pardons will prove a gateway policy to the broader use of mass pardons and commutations, a practice that was more widespread in the past but has fallen into almost complete disuse. The most likely issue to follow the Biden plan would be relief for elderly people serving life sentences, but the effectiveness with which Dr. Mehmet Oz is attacking Lt. Gov. John Fetterman on his tenure as chair of the Pennsylvania pardon board suggests that clemency has nowhere near the popular support of marijuana policy.
A bigger concern, though, is not just that the policy might accomplish very little, but that it might make things worse for criminal legal reform in the long run because it reinforces a false narrative about the causes of mass punishment in general and mass incarceration in particular. It’s a narrative that shapes—or, better put, misshapes—policy.
Most Americans are deeply misinformed about why people are in prison. A survey in 2017 found that solid majorities across the ideological spectrum agreed with the claim that a majority of people in U.S. prisons are there for drug crimes. That’s a far cry from reality: 14 percent of people in state prisons were locked up for drug offenses at the time, a number that has fallen since then. (Those held in state prisons make up 90 percent of the nation’s incarcerated population.) This misbelief likely contributed to the next two results from that survey: while majorities of liberals, moderates, and conservatives favored lesser sanctions for those convicted of non-violent crimes who posed little risk of reoffending, majorities of all three groups also opposed lesser sanctions for those convicted of violence who likewise pose little risk of reoffending.