President Biden on Thursday said the US prohibition on cannabis had “failed” and announced several steps toward unwinding the deeply unpopular policy, including launching an expedited review of marijuana’s classification as a dangerous “Schedule I” drug and allowing those convicted of pot possession under federal law to apply for pardons.
While Biden’s move would affect only about 6,500 people with federal convictions (plus thousands more residents of Washington, D.C.), the president also urged governors to pardon people who have state-level marijuana possession charges, a vastly larger population.
In Massachusetts, where voters in 2016 legalized marijuana, officials in the office of Governor Charlie Baker declined to say whether he would follow Biden’s lead. Instead, they noted Baker had signed legislation in 2018 that allows people previously prosecuted under Massachusetts law for cannabis-related conduct that is now legal to apply to have the charges erased (or “expunged”) from their records.
But the Democratic candidate running to succeed Baker, Attorney General Maura Healey, told the Globe in a brief statement that, if elected, she would heed Biden’s request and “move to pardon state convictions for simple marijuana possession, modeled after the steps taken” by the president. Her campaign did not elaborate on whether she would do so automatically or require former defendants to apply, as they must under the current law.
Baker and Healey in 2016 joined forces to campaign against that year’s marijuana legalization ballot initiative. Healey has since backed away from the stance, saying in August her concerns about the public health consequences may have been “unnecessary.”
She’s hardly alone in pivoting on the issue, which has seen a sea change in public opinion over the past decade. As a US senator in the 1980s and ‘90s, Biden was an enthusiastic proponent of the war on drugs before recasting himself on the 2020 campaign trail as a reluctant reformer.
Geoff Diehl, Healey’s Republican opponent in the upcoming election, issued a statement slamming Biden for eliminating “consequences for wrongful actions” — but also said he would respect the decision by Massachusetts voters to legalize the drug.
While tens of thousands of Massachusetts residents were charged with low-level marijuana crimes in the decades before cannabis was decriminalized here in 2008, it was not immediately clear how many local residents carry federal possession charges. The office of US Attorney for Massachusetts Rachael Rollins said federal prosecutors here long ago ceased charging people solely for possessing small quantities of marijuana.
Despite rapidly changing attitudes, experts said old marijuana charges can haunt former defendants, popping up on background checks and blocking them from getting jobs, signing apartment leases, winning custody cases, or winning admission to college.
A Globe review last year found that exceedingly few people have successfully cleared their marijuana-related state criminal records under the 2018 law, thanks to restrictive eligibility criteria and a cumbersome process that gave judges wide latitude to deny the requests.
The process could become somewhat easier, however, under a recent ruling by the Massachusetts Supreme Judicial Court, as well as legislative updates to the 2018 law that tipped the balance in favor of former defendants by removing the discretion of judges to reject expungement applications without explanation.
Still, advocates are calling on Baker to act on Biden’s request and circumvent the existing system that puts the onus on individuals by issuing immediate pardons for all past marijuana possession charges.
“The governor should heed President Biden’s call and promptly pardon people with convictions for marijuana possession,” Carole Rose, executive director of the ACLU of Massachusetts, said in a statement.
Rose added that the state “should be looking beyond marijuana convictions to right the wrongs of the failed war on drugs more generally; that includes using clemency powers to remedy the harm caused by decades of draconian criminal laws and prioritizing harm reduction over criminalization.”
Other drug policy experts fretted about the unintended consequences of Biden’s move, even as they applauded its intention. For example, by moving marijuana into a less restrictive classification, the administration could also bring any cannabis products under the purview of the US Food and Drug Administration, adding a whole new layer of bureaucratic approval to what is now in Massachusetts a straightforward process.
“It’s critical that this long-overdue review does not inadvertently undo the years of progress made by state cannabis regulators by, for example, requiring all products to be FDA-approved,” said Shaleen Title, a former state cannabis commissioner who now runs the Parabola Center for Law and Policy. “We urge the president to support a comprehensive transition to a national market that respects existing state regulations, emphasizes justice for overpoliced communities, and promotes competitive small businesses over the interests of would-be marijuana monopolies.”
Samantha Gross of the Globe staff contributed to this report.