Quentin Wathum-Ocama wouldn’t describe himself as a marijuana decriminalization activist. But as an educator in St. Paul, Minnesota, he sees the effects of marijuana criminalization every single day, from students being unable to access financial aid to adults struggling to find employment. “Marijuana criminalization has been used to really hammer at our communities of color,” he said. So he was happy to hear the news that President Joe Biden had pardoned federal cannabis possession convictions. “I was really, really excited,” he said.
On October 6, President Biden pardoned every person with a federal marijuana possession conviction, condemning cannabis criminalization as racist and suggesting that marijuana’s legal categorization should be changed. During his career in the Senate, Biden took a hawkish approach toward drug offenders and was instrumental in the passage of the 1994 crime bill, which increased the penalties for drug-related crimes. And in 2020, Biden was more conservative than most Democrats running for the party’s presidential nomination on drug policy, thanks to his opposition to legalizing marijuana. Biden’s pardons thus stand in stark contrast with his previous approach to drug legislation and could signal a new era of more lenient federal policy on marijuana.
Despite this symbolic significance, the pardon will have little immediate impact on those affected by marijuana criminalization and communities like Wathum-Ocama’s. In the past 30 years, only 6,500 people have been convicted at the federal level for marijuana possession— over 90% of marijuana convictions occur at the state level. In fact, at the time of Biden’s pardon, not a single person was in federal prison for marijuana possession. Pardoning marijuana convictions without decriminalizing or legalizing the drug means that people can still be newly arrested on marijuana possession charges. Furthermore, these pardons do not actually erase ex-convicts’ criminal records, meaning these charges will continue to follow these individuals as they apply for loans or seek employment and education.
In his announcement, Biden cited a desire to reverse the racially discriminatory effects of the War on Drugs. Historically, Black people are nearly four times more likely to be arrested for marijuana offenses than white people, despite research showing that Black and white Americans use the drug at roughly equal rates. In opting to pursue blanket pardons rather than undoing discriminatory drug policies, Biden has failed to address the racialized aspect of mass incarceration that he claims he wants to resolve.
Biden’s action is unlikely to immediately affect states’ approaches toward cannabis decriminalization and legalization. While he implored states to follow his lead on pardoning marijuana-related offenses, he introduced no incentives to encourage states’ compliance. In this absence of federal leadership, states have determined their own cannabis legislation, but these policies have not always accounted for the disproportionate impact of marijuana criminalization on Black communities. Some states are now aiming to make their cannabis policies more equitable to ensure the most-affected communities reap the benefits of marijuana legalization. However, these policies have also faced barriers to implementation.
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Wathum-Ocama is in a unique position. He works in a community where recreational cannabis use is still illegal. But he is also president of the Young Democrats of America (YDA), a national organization that aims to elect Democrats and advocate for progressive policies. Thanks to YDA, he is often in contact with organizers in states where cannabis has been legal for years. He sees how the criminalization of cannabis negatively impacts his own community, yet hears from leaders across the country that simply legalizing marijuana does not magically create equality. Biden’s announcement is “a really positive first step,” Wathum-Ocama said. “But it’s definitely a first step. We know there’s a longer conversation and struggle ahead.”
Many experts agree that Biden’s pardon had a limited reach. Kevin Sabet served as an advisor on the White House Office of National Drug Control Policy for Presidents Clinton, Bush, and Obama. He is opposed to the legalization of cannabis and views the relatively small scope of Biden’s announcement as an important win. “President Biden continues to oppose the legalization of marijuana, and we are grateful to the Administration for this,” he said.
Even liberal cannabis activists agree that the pardons do not send a clear signal about the future of marijuana policy. Dr. Seth Blumenthal is a professor at Boston University and historian of the Republican Party who is active in the push for marijuana legalization.“I am hesitant to get too excited about the change that it will create,” said Dr. Blumenthal. In his mind, Biden’s announcement has the potential to signal a new era of more equitable federal drug legislation, but it does very little to address the existing problems with drug criminalization. He described the policy, which requires ex-convicts to get physical certificates to show their pardon, as both a literal and symbolic “papering over of a systemic issue around mass incarceration.”
Lenore Anderson, the president of the Alliance for Safety and Justice, an organization committed to criminal justice reform and reducing incarceration levels, also emphasized the need for more action on marijuana reform. Anderson advocated for cannabis legalization and the expungement of the criminal records of those convicted of marijuana violations. “In states that have legalized marijuana, there has got to be an aggressive effort to go back and pardon and clean up the records for people who have these old convictions languishing,” Anderson said. “A conviction, no matter how minor the crime, has a real life-long consequence on your eligibility for jobs, for housing, student loans, business loans, occupational licenses, you name it.”
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States that have legalized marijuana have grappled with the issue that Anderson identified: legalization of cannabis does not immediately repair the inequality embedded in the drug’s history. Though legalization has been touted as a route to uplift communities targeted by marijuana convictions, little of the money generated by the legal market has returned to such areas. Instead, decriminalization has disproportionately benefited white people. In 2017, 81% of cannabis business owners nationally were white and just 4.3% were Black. Further, Black Americans are disproportionately underrepresented in the cannabis industry when compared with Black representation in other industries — on average, Black Americans own 5% of businesses in any industry, but they own just 2% of businesses in the cannabis industry.
Cannabis licenses are difficult and expensive to obtain, requiring significant time, money, and legal assistance. Thanks to the litany of rules governing the sale of legal marijuana, a 2017 study concluded that opening a cannabis dispensary costs hundreds of thousands of dollars on average. Decades of systemic oppression mean that the communities most impacted by the War on Drugs are less likely to have access to the resources needed to obtain a license, due to higher rates of poverty. Ironically, this means that the communities that drug reform is intended to help benefit the least from recreational marijuana legalization.
Even in states that have legalized marijuana, there is still plenty of work to be done to create real equity. This is especially evident to Wathum-Ocama as he watches his fellow Minnesotans weigh the pros and cons of legalizing cannabis. “When we look at what’s happening in other states, it’s really frustrating … in states that have legalized [cannabis] we see predominantly white entrepreneurs coming in and making millions of dollars from this,” he said.
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Some states concerned with ensuring that marijuana is legalized in a more equitable manner have acted to take concrete steps. Connecticut, for instance, established the Social Equity Council in 2021. The Council’s mission statement declares that the SEC “was developed in order to make sure the adult-use cannabis program is grown equitably, and ensures that funds from the adult-use cannabis program are brought back to the communities hit hardest by the War on Drugs.”
Connecticut is not unique in aiming to legalize cannabis in a way that benefits marginalized communities. States from Illinois to New York have created systems to improve racial equity in their legalization of cannabis. Unfortunately, these programs have fallen short of their goals. In California, which legalized recreational marijuana in 2016, Long Beach established an equity program in 2018 with the hope of providing marginalized individuals with the resources to open cannabis businesses. However, in the four years since the program’s founding, only one of the program’s 93 participants has received a license to open a store. Similarly, in Massachusetts, which also legalized cannabis in 2016, only 1.2% of cannabis businesses are owned by people of color, despite efforts by the Massachusetts Social Equity Program to provide training and additional financial support to people from underrepresented communities who are interested in the marijuana business.
What makes Connecticut’s approach different? To start, unlike other states such as Massachusetts and California, which simply provide training programs and priority licenses to those who seek them out, Connecticut has allotted 50% of all marijuana business licenses to be given through the social equity lottery. To qualify as a social equity partner, an applicant must fall under a household income threshold or be a resident of an area with historically higher rates of unemployment or drug-related convictions. For 2022, the Social Equity Council will award 56 licenses, 28 through the normal lottery, 28 through the social equity lottery. The SEC will also provide additional support including financial counseling and insurance advice to social equity partners.
Andrea Comer, chair of Connecticut’s program, has discussed her hopes for the reinvestment of tax revenue from cannabis dispensaries into social welfare programs in marginalized communities. She hopes that these funds will help to heal the decades of damage from drug-related incarcerations and build intergenerational wealth for communities affected by marijuana criminalization. “It’s unconscionable we’d legalize something that people have been criminalized for, and not make space at the table for those most harmed by the War on Drugs,” she said in an interview with the Hartford Courant.
The Social Equity Council has unfortunately already encountered several obstacles. The organization is already facing multiple lawsuits from companies it deemed unsuitable for meeting its social equity criteria. Connecticut is just a little over one year past its legalization of marijuana, so only time will tell if the SEC’s efforts are ultimately successful. If they are, though, the Social Equity Council could provide a road map for the equitable legalization of marijuana.
Biden’s pardoning of federal marijuana convictions may be the beginning of a new era in cannabis legislation. But for Quentin Wathum-Ocama and many other community leaders, his action raises important questions about how these laws can benefit the people most harmed by marijuana criminalization. “There’s an opportunity here to recognize who was harmed the most, those who have been the victims of the War on Drugs in the United States,” Anderson said. “How can we right that wrong? How can we right that wrong by providing real opportunities for economic mobility in this industry and others?”