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Notes -
President Biden has announced new executive action (... on twitter):
There are some big, and not always obvious, caveats here. There are very few federal prisoners for simple possession, and most of those are border-related cases where the person will (or would normally) end up deported afterward. Leaving sale, manufacturing, and distribution charges and convictions alone is more tenable at the federal level, where most thresholds are high in practice, but it still leaves a lot of sympathetic cases in prison or with serious criminal records for what is often a bullshit crime. Even if state jurisdictions follow along, lower state and local thresholds for distribution or intent-to-distribute will have far less impact than the eye-popping numbers pot legalization advocates bring. Many of the jurisdictions not already seriously considering decriminalizing pot offenses at the state level are unlikely to find this Call On Governors very persuasive; while there is a crossover component, some Red Tribe-leaning states may consider the political nature of this call legitimate cause to adopt wait-and-see approaches at best. The overlap between pot and general soft-on-crime aren't perfect, but it's not non-existent, either.
And it's hard not to see the timing as political: this was a campaign promise, held off for over a year and a half. While a lot of friendly reporting points to requests from other politicians, that doesn't actually make it less political, even were it not their midterm election season.
On the other hand, there's limits to how much I can complain about someone doing a good thing for selfish reasons. I am not a fan of marijuana, and marijuana legalization advocates tend to get incredibly unrealistic promises for the benefits and ignorance of the costs of legalization or decriminalization. It's hard to see the drug as safer than vaping, for another matter the FDA has crusaded against recently, even for optimistic reads on the risks of schizophrenia or lung disease. But it's also very hard to consider most federal or state extant rules good on their own merits, or even legitimate uses of government power. And, notably, this route has been available to other Presidents, who had similar political benefits (and risks), and who did not take it.
((If it actually happens; announcing a policy on Twitter does not implement it. It's quite possible that the actual real-world version runs into stumbling blocks -- a Biden pardon series is unlikely to face the sort of legal friction a Trump one would, but there's no shortage of unsympathetic prisoners and very unpleasant border cases. Bulk pardons aren't unprecedented, but they may be rough in practice here. And this would easily dwarf those past examples; this isn't quite nullifying a federal statute, but it's a lot closer than anything done in the past.))
The other interesting side is this taking so long to happen. There's a lot of good reasons to be skeptical of policy polls on the matter, but support for decriminalization is one matter that's replicated fairly well in actual referendums and ballots. This is a place where federal legislative action is plausible, and also largely unexplored entirely. The actual FDA rulemaking is a charlie foxtrot waiting to happen -- emphasis on the wait, as I'm skeptical it goes anywhere in a year -- but the power of the pardon is broad. It's understandable that major politicians are less likely to have inhaled than the average American, but it's not like President Obama or Clinton were strong pot advocates, and in turn Biden's historically been almost as skeptical as Trump was.
It's been difficult for me to process my reaction to this news. I was nearly eaten alive by the criminal justice system for drug crime, and I escaped by virtue of good luck and a fire hose of money to douse the problem with. Human suffering can take many forms, but the detached, kafkaesque horror of being prosecuted and imprisoned for a crime that nobody even cares about anymore is... unique.
I cannot mourn a tragedy in progress. It is only when the threat has passed that I can begin to grieve, both for my own loss and for others. Hearing the president crack open the door to ending prohibition gave me a taste of that. I hope that I can release the rest of my tears soon enough.
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I'm surprised no one has mentioned what I see as the biggest problem with this. Do we really want presidents to effectively unilaterally nullify laws the president thinks are wrong? How would those in the blue tribe react if a President Trump pardoned Jan 6th offenders? How would those in the red tribe react if a President Kamala Harris pardoned BLM rioters (supposing some future 2020-summer-of-unrest-like scenario where offenders were charged federally, for the sake of keeping this comparison apt)?
Yes, presidents have the power to pardon, but I don't think we should let that slide into something that looks quite like undermining the separation of powers. This is just the latest in a long-running series of examples (student loan forgiveness, eviction moratoriums, vaccine mandates via OSHA, Trump's border wall funding via "emergency" powers, DACA under Obama) where the executive is trying to usurp power that belongs to the legislature.
I think there's a sense in which pardoning one's political supporters is worse than pardoning a more generic crime, since there's an obvious conflict of interest.
The entire point of giving politicians the ability to pardon is, presumably, that they should sometimes use it; specifically I think it's supposed to be used to "patch" cases of injustice in the legal system. Still, I guess I agree that it probably wasn't intended to allow the wielder to effectively strike any law they dislike from the books when frustrated by the democratic process for removing it.
However, in this case, as acknowledged by the tweet thread, it seems like the power to determine how illegal a drug is has already kind of been delegated to the executive in the form of the DEA under the DoJ. (Because, as everyone knows, the US legislative process is kind of broken.) In fact, as people have pointed out, there isn't even anyone currently in federal prison for simple possession of marijuana; the federal law against simple possession largely goes unenforced, I guess? So this isn't the pardon power being used to de facto nullify the will of the legislature, just to adjust the punishment the executive inflicted.
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There is some amount of precedent to pardoning (or more likely commuting sentences) of perceived political prisoners. Carter rather famously
pardonedcommuted the sentences of the Puerto Rican nationalists who "attempted to assassinate President Truman" and "sprayed gunfire from a gallery overlooking the House of Representatives". Obama commuted Manning's sentence.Honestly pretty much all application of the pardon and commutation powers are some combination of nepotism and corruption (Clinton pardoned his brother, among others) and politically principled overturning of perceived injustices.
Carter did not pardon them; he commuted their sentences, and it was not because they were "perceived political prisoners" -- in the article you link, that claim is explicitly rejected by everyone involved.
Well, yes, because that doesn't leave much in the way of other reasons for the application of those pardons. The question is what percentage is each
Whoops, I knew it was supposed to be "commuted" but must have been in too much of a hurry when typing the original comment to notice. Thanks for correcting that!
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Not sure whether we want it, but it is obviously what the founding fathers wanted. Of course we go down the rabbit hole of why the fuck are drugs crimes federal crimes to begin with. Except the trafficking across state lines, everything else should be state.
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Yes.
Negative vs positive policy, and the constitutional rights ratchet only turns one way. I'm always in favor of needing unanimity between the Congress, the executive, and the courts to imprison people or restrict their freedom in any way. If even one branch chooses not to restrict freedom, it shouldn't be done. That goes for the Jan 6th protestors, BLM rioters, etc. If the president does not feel that public safety is served by spending taxpayer money to imprison these men, they should be released.
Similarly if the courts find it unconstitutional, but the legislature does pass a law on it, then the executive can't choose imprisonment without the courts. And without a law being passed by the legislature, the courts and the executive can't get together and decide it should be illegal. In this case the courts and the legislature might be pro restricting freedom, but if the executive isn't then it doesn't matter, the freedom defaults to the people.
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Agree and disagree. There is one big difference on these pardons. They have high mostly bipartisan support. Not sure on GOP numbers but I would guess it’s close to 50% or higher.
The student loan forgiveness was a bigger deal for executive action because it was not highly popular.
Im a Democracy it’s not efficient to just vote on everything. But in this case the move seems popular so even if it’s technically an overreach of authority - the whole Kavanaugh doctrine of using molehills into mountains - it’s less bad because it’s popular.
And fwiw I sort of support Trump pardoning 1/6 defendants because I don’t think they’ve been treated judicially. But I’m not sure it will be worth the politically capital it would costs. For Biden he’s getting positive political capital for the move because it’s highly positive. The whole notion of political capital and being punished in the next election for doing unpopular things is the checks and balances for this move.
If it's so popular, have Congress pass legislation decriminalizing marijuana. If Congress can't/won't, then why should it be okay for a president to unilaterally decide something similar?
This isn't a parliamentary system. We don't do that here. Separation of powers exists whether we like it or not, and in my opinion it exists for a good reason.
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Did anything at all happen to these people ? Even suspended sentences ? I recall a case of activists setting a cop car on fire and getting six months, so..
Different optics on the justice system just failing to do its job initially versus actively pardoning people, IMO.
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The AP says that those who have been sentenced in federal court have averaged 27 months in prison.
That's really not very helpful given they don't say what proportion has been sentenecd.
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Also worthy of noting is that the number of those sentenced was 70. Given that of "Distrupt J6" protestors, an event in which much fewer participated in, 65 have been sentenced, 70 seems low.
As in my comment as a side not I favor Trump pardoning 1/6 protestors because their punishments seem out of line of summer riot protestors. I believe the data fits this. But it is likely an unwise use of political capital.
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Your point is well taken, but I have to say that my reaction to this would be, "yeah, I kind of figured that the people that fucked my city up wouldn't face consequences if they were useful to the left", which has been exactly my reaction to the local handling of riots and looting.
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As someone who fully supports the content of the action (although I'd go further) it is hard to describe exactly how distasteful it is that they held off for so long, even if we don't count the Obama years, on a promise that they now pretend is so morally important and meaningful. It's been an important and meaningful issue for the better part of twenty years, and so I don't think we can just pretend that your failure to act in those past opportunities is somehow forgiven. Every day that he 'knew' this moral outrage was occurring and dragged it out is a day he's personally accountable for. And which neither he nor anybody else will ever be held accountable for. This is a playbook I first noticed with Obama. Trot out an occasional win on social issues to appease the base and distract from the more important/influential economic policies you're working on.
I want to give credit where credit is due but it sure feels like very little credit is actually due when the only reason the action was even considered and implemented is a cynical ploy to stave off an electoral bloodbath in hopes of clinging to political power a bit longer. Political power that will ultimately be used to take many steps that I will find disagreeable and which will probably more than override the good that his action does here.
If politicians will only follow through on their more ambitious promises, despite having the ability to fulfill them, when they feel electorally vulnerable then the clear message is that they should constantly feel electorally vulnerable.
Can't help but feel like the ideal outcome is that Biden actually sees this proposal through (yes, I also notice how he can easily walk back much of this proposal at a later date) and the Dems still lose at least the house of representatives in the election so we hopefully get some kind of gridlock, and maybe Biden starts pulling some real rabbits out of his hat in response.
Still, glad this is at least happening. Still won't solve the grinding, looming, terrifying economic problems we're faced with.
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This is a bad idea, and I will explain why its a bad idea even if you think marijuana should be legal:
None of these people are actually in prison because they had weed on them. They are hardened criminals, who also happened to have weed on them and that was the easiest thing to prove, so that is what the AG who wanted to preserve his 100% conviction rate went with.
According to CNN, "Officials said there are currently no Americans serving prison time solely on federal simple marijuana possession charges." So, no one is actually being released because of the pardons.
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This seems plausible, but can you provide any evidence for this claim?
https://www.prisonlegalnews.org/media/publications/culpeper%20and%20johnson%20foundations'%20report%20on%20substance%20abuse%20in%20prison%2C%201998.pdf
"it appears that few inmates could be in prison or jail solely for possession of small amounts of marijuana. Indeed the number is likely so small that it would have little or no impact on overcrowding "
https://www.ojp.gov/ncjrs/virtual-library/abstracts/behind-bars-ii-substance-abuse-and-americas-prison-population
Of all drug defendants only 2.3 percent—186 people—received sentences for simple possession, and of the 174 for whom sentencing information is known, just 63 actually served time behind bars.
https://www.ussc.gov/guidelines/2021-guidelines-manual-annotated
Those are the sentencing guidelines.
Here are some illustrative examples you can use the guidelines to doublecheck:
Simple possession of marijuana (say you are caught with a big ole bag of weed) is, at most, a level 4 offense, carrying a sentence of 0-6 months for first time offenders and up to a year for those with a criminal history. Acceptance of responsibility (aka plea deal) would reduce the offense to a level 2. At level 2 anyone without a Class VI criminal history has a recommendation of 0-6 months, and a VI would be 1-7 months.
The next level of possession would be if you had 2-4 kilograms of marijuana. That is a Lvl 10 offense. So 6-12 months for a first time offender, 24-30 for a Class VI criminal. LVL 10s are allowed to be pled down to lvl 8, which would make it 0-6 months for a first time offender. With 8 pounds of weed! That's enough for Havard's whole student body to get high for the weekend!
The fact that only 2.3 percent of all drug defendants received sentences for simple possession in no way supports your claim that those pardoned are "hardened criminals," because that data says nothing about what other crimes those people might or might not have committed.
Of course, there are certainly people who are convicted of both marijuana possession and, say, robbery. But:
those are not the people you are talking about; you explicitly claim that "They are hardened criminals, who also happened to have weed on them and that was the easiest thing to prove, so that is what the AG who wanted to preserve his 100% conviction rate went with." That means you are saying that they were not convicted of additional crimes.
If someone was indeed convicted of both possession and robbery or other serious crime, pardoning their possession offense does not get them out of jail; they still have to serve the sentence for robbery.
Nor do your references to the sentencing guidelines say anything about what other crimes these people did or did not commit.
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in advance, probably not. check the outcomes for the people who've been pardoned, over the next decade or so. If the above is correct, you'll see very bad outcomes relative to the general population.
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It has the critical advantage of being very easy to prove (or frame, for that matter).
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Well that sure points towards deeper problems with the system that still doesn't justify keeping marijuana illegal just to act as a crutch for overly cautious prosecutors.
You can maybe convince me that many guys are in prison for worse crimes than marijuana possession even if that's all it says on their sentencing form. That's not going to make me conclude that marijuana legalization is 'a bad idea' unless keeping it illegal it is literally the only and/or least harmful way to keep these guys from causing further problems for society.
It wouldn't completely justify marijuana laws, but it should decrease your estimate of the harm caused by marijuana laws.
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If you think public servants being lazy and covering their asses points towards deeper problems with the system you're never gonna like any system.
This is reminds me of Japan which has very little crime and very high convictions rates. A lot of crimes are difficult to prove in the American system but possession of drugs or guns are easy to prove.
Chicago on hot weekends use to keep evidence on small time drug dealing so they could pick up people if they thought violence was going to occur. Pick them up on a Friday and drop the charges on Monday.
I don’t love these games for civil liberty reasons but they do have effectiveness.
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CORRECT, for most definitions of 'system.'
But this happens to be a system I have extensive personal experience with (at the state level) so I'm particularly averse to allowing the abuses of regular, peaceful people to continue in the name of protecting us from the relatively small number of serious offenders.
Prosecutor's offices will adapt to the new circumstances and maybe we'll have a slightly better equilibrium at the end of it.
If Marijuana criminalization is necessary as a tool to enforce other laws (which I do not grant) then maybe we just openly say that rather than maintain a farcical legal regime.
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Texas(one of the few states where the only legal marijuana use is for terminal medical cases and which means exactly that) has already said that it isn't going to start wiping marijuana convictions. In most other red states, marijuana convictions are a pretty strong filter for "too stoned out to lie to a doctor for 15 minutes to get a prescription", but Texas is still strict about allowing only terminal disease patients access to medical marijuana.
I mean, my two cents is that nonviolent drug offenders should have their records wiped clean after they get out of prison. I think that to the extent that this is doing that, it's basically good, but that to the extent it's releasing actual criminals from prison, it's basically bad. And I would have to actually look at the data to see to what extent this is which- my priors being that almost everyone who actually serves in a federal prison for drug possession is actually a dealer who took a plea bargain, but there's probably some people who pulled a Brittany Griner and have it on their record.
This actually is doable in a lot of states You do have to clear the additional hurdle of "being able to hire a lawyer and accomplish paperwork", which is a sort of filter for a minimal degree of functionality.
It seems like not being able to get a free or reduced cost lawyer for that purpose is probably an edge case, so it's a pure functionality filter, which is good.
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Like vaping, I never understood why snus wasn't promoted as a har reducing alternative to other chewing tobacco.
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One angle you may not be familiar with for the US context is that smoking is already very rare and the quit smoking campaigns were quite effective on their own. So the cost and benefits are much different than countries where it's still very popular. I literally don't know a single person who smokes cigarettes.
I think it is very unlikely that there is no negative effect to vaping, and many end up vaping nicotine anyways.
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I mean, there are potentially serious and life-threatening lung injuries that can be caused by vaping, so it's not without basis, even if it is generally better than smoking for public health reasons.
Like what? The only thing that seems to be 100% clear is that black-market THC vapes are a bad idea.
My understanding is that THC-containing vapes are a solid majority (75-80%) but certainly not all of the vaping-associated lung injuries, last time I read up on it on UpToDate. The pathophysiology of why vaping causes lung injury is also not entirely elucidated at this point.
Vaping also hasn’t been around long enough for us to see if it has long-term deleterious effects (like COPD for smoking). We do know that vaping seems to make COPD worse, however.
In any case, I would suspect more vaping to coincide with more vaping with poor products, which appear to have a higher incidence of lung injury, in which case a norm that increases vaping uptake would likely cause some amount of increase in these serious injuries. Whether that is worth the trade-off is another issue.
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A quick google brought this up:
...
Some other identified additives seem to be bad for a variety of reasons. Related conditions include pneumonia, lung collapse, 'popcorn lung'.
Seems to be that vaping by itself seems ok, its just when certain chemicals are used that things turn nasty.
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Damn. I think I know two people who don't smoke.
I think this might be a class/tribe divide. I've worked a bit in blue collar before where many people smoked, but in university and white collar jobs literally no one smokes.
I first met a significant number of people who smoked when I went to uni...
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It’s very regional too.
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Yeah, makes sense. My social circles are entirely working class.
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Yeah, I know quite a few people who smoke here and there, say when they're drinking. But not daily smokers or anything.
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Recreationally or like daily users?
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The northeast.
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Between this and the student loan forgiveness, Biden is throwing out the goodies. Too bad for him he is in the lose-lose situation regarding the economy.
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Didn't Obama do parts of this already?
FWIW, I oppose Biden generally, but generally support this policy. Though, if I remember correctly, when Obama let out a bunch of "simple pot possession" inmates, it turned out there weren't enough people in federal prison on simple possession, so they let out a bunch of dealers with gun charges etc.
Obama commuted a bunch of extant custodial sentences for federal non-violent drug prisoners, which is how his version ended up with a pretty small total count and a lot of drug dealers.
Focusing on pardons avoids the problem that most federal drug simple possession charges seldom focus on citizens or lawful residents and almost never result in custodial sentences, although in turn it's going to raise the culture war ramifications on other aspects (eg, "ban the box", whether someone caught while carrying several pounds of pot over the border is deportable/not eligible for asylum consideration) and limit the impact among citizens (I'd be surprised if it exceeds 10k pardons of citizens), as well as just how visible that impact is (ie, mostly people who never went to prison).
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Yeah usually it's just a misdemeanor and handled by the states. How often does the feds get involved for 'simple marijuana possession ', not dealing or trafficking? But some sources say 6500 people benefit form this pardon , from1992-2021 .
That's a lotta folks smoking joints in national parks.
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Credit where credit is due- this is a step in the right direction. I dislike Biden strongly but I agree with this.
Also, it was nice to see him share the podium in Florida with Desantis during the hurricane.
Also, I think it was a class act for Biden to personally call Peter Doocy from Fox news and apologize for calling him a "son of a bitch." It made Biden relatable in that moment, almost likable even.
Again, I dislike Biden strongly but it's important to recognize what he gets right, if only to combat one's own cognitive bias.
I think the reality is that for whatever I'm inclined to say about his politics and corruption, he probably is basically relatable and likeable. His political success sure and hell doesn't come from being the sharpest knife in the drawer, but he's a master of winning friends and influencing people. At bottom, he probably is exactly the kind of guy that would get frustrated with someone, call them a stupid son of bitch, then cool down later and call them to say, "hey, sorry about that, it really isn't personal, you just pissed me off".
If you watch old speeches of Bidens he comes off quite eloquent and intelligence. It’s only now that he has dementia. He’s not rocket scientist smart but he had the ability Desantis has of having content laden speeches with fire.
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