By Mitch Baruchowitz
Is the federal illegality dam about to break?
President Biden’s announcement pardoning all simple marijuana possession cases, instructing governors to do the same, and ordering a review of cannabis scheduling has given hope to many people that the legalization of cannabis is not far behind.
But I fear we may be getting ahead of ourselves. With the mid-term elections just weeks away, it’s hard not to view Biden’s decision as simply a political gambit meant more to mobilize voters than motivate lawmakers to take more aggressive action.
The fact is the Biden administration has established itself as the least cannabis-friendly administration since the legalization drive began in earnest in 2009. Despite campaign promises to continue cannabis law reform, the Biden administration has taken no action to make good on them. In fact, the administration has stigmatized cannabis by denying past users both security clearances and employment in the White House, upholding laws restricting veterans’ access to cannabis, and permitting public housing authorities to evict cannabis users.
That’s not to say Biden’s pardon decision was not sound or will not have a positive impact on cannabis policy. By speaking publicly about cannabis, Biden took a step he had previously avoided.
Cannabis criminalization, particularly for possession, has disproportionately affected people of color. By pardoning 6,000 such convicted people, Biden provided well-deserved relief. Biden also signaled to Democrats to look at ways to move cannabis reform along, even if incrementally. With several bills floating around Congress, Biden’s message seems to have created momentum amongst Democrat leaders to continue moving cannabis reform forward, leading many to speculate a higher probability of SAFE Banking passage during the lame-duck session.
But the announcement also fell short in many ways. For example, because most federal cannabis convictions include offenses other than possession, no one has been released from jail. Biden could have pardoned all non-violent cannabis prisoners, many of whom were convicted of intent to distribute because of their possessed quantities. He also failed to include the expungement of old convictions.
Further, Biden’s statement to governors has zero practical power. In any case, governors in many states are already moving to decriminalize and even expunge non-violent cannabis offenses. By asking governors to consider pardoning possession, which would be much more impactful at the state level, Biden effectively left the hard work to others.
The moment was ripe for Biden to create a cannabis czar who could work with states and pressure Congressional leaders to move a host of bills forward. Yet none of that occurred. No significant policy change seems imminent or even currently considered.
There is still hope that Biden will follow through with more action. But significant hurdles remain. In ordering a review of the scheduling of cannabis, which many see as a prerequisite for legalization, Biden merely set in motion a process that will take considerable time and encounter political opposition. The DEA and FDA are filled with former pharmaceutical executives who have often shown antipathy towards cannabis.
Suppose Biden or other Democratic leaders don’t push hard for descheduling. In that case, this step could unnecessarily take years or be dominated by pharmaceutical industry lobbying, which we believe could lead to various unproductive directions.
Biden has a major opportunity to capitalize on this first step he has taken to decrease stigmas, unlock more medical research, and validate the anecdotal evidence relating to the medical efficacy of cannabis. Analysis from my company, Merida Capital Holdings, suggests that federal decriminalization could supercharge the legal cannabis industry’s growth from $32 billion in 2023 to $50 billion in 2025.
Most of the impact of Biden’s statement will be felt over the next few months based on the follow-through his administration shows. While I am cautiously optimistic, for the cannabis industry, investors, and even state regulators, it’s more than anything a matter of wait and see.
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