What Biden’s marijuana announcement means for Minnesota

President Biden announced today that he is pardoning all people with federal convictions for simple marijuana possession, and is calling on state governors to do the same for those with a state conviction. He also said he is asking the Department of Justice and the Department of Health and Human Services to initiate a formal review of marijuana’s Schedule I status under federal law, which is the strictest category of drug control.

Here’s what those changes would likely mean for Minnesota.

Is Biden legalizing marijuana?

No.

Rather, he is asking his administration to perform a review of marijuana’s status under federal law. There’s a complicated formal process for doing so, involving the Food and Drug Administration (FDA) as well as the Drug Enforcement Administration (DEA). A similar review took place in 2016 at the behest of the governors of Washington and Rhode Island. The outcome of that process — a DEA denial of the petition — hinged primarily on the fact that the FDA had not approved smokable or ingestible cannabis for the treatment of any medical condition.

“Marijuana remains a Schedule I controlled substance because it does not meet the criteria for currently accepted medical use in treatment in the United States, there is a lack of accepted safety for its use under medical supervision, and it has a high potential for abuse,” the DEA wrote at the time. 

Those facts remain largely unchanged. Whole-plant cannabis still hasn’t received FDA approval to treat any disease. However, a small handful of drugs containing compounds derived from the cannabis plant have been approved since then. 

The outcome of the current review will likely depend on whether “accepted medical use” still takes precedence in the DEA and FDA’s analysis. 

One sign change may be afoot in the federal bureaucracy: at 4:20 PM Eastern Time yesterday, HHS Secretary Xavier Becerra tweeted that he was “looking forward to working with Attorney General Garland to answer @POTUS’ call to action to review how marijuana is scheduled under federal law.” That sort of enthusiastic participation was notably absent from the review process in 2016.

If the DEA agrees to remove marijuana from Schedule 1, would that make marijuana legal?

No.

They could still choose to place it in the less-strict categories of the Controlled Substances Act, like Schedules II or III. That would make it easier for researchers to access the drug and for state-legal marijuana businesses to do things like banking, but it still wouldn’t make it legal for recreational use at the federal level. 

That would only happen if they decide to remove marijuana from the Controlled Substances Act entirely.

So if the DEA and FDA remove marijuana from the Controlled Substances Act, would that make it legal in Minnesota?

Again, no. 

Even if it were completely unregulated at the federal level, state regulations would still apply. Right now in Minnesota cannabis remains technically illegal for recreational use, with the exception of the low-dose edibles that the Legislature somewhat haphazardly approved earlier this year.

However, removing weed from the CSA would send a strong signal to states that the war on marijuana is over. It would likely provide momentum to state lawmakers looking to legalize the plant in their own jurisdictions, as well as political cover to those in purple areas who remain on the fence about legalization.

What about the pardons for those convicted of marijuana possession?

Biden’s announcement only directly affects those convicted under federal law. There are currently no federal prisoners serving time for marijuana possession alone, according to a senior administration official. But that official said over 6,500 people had previously been convicted of the charge under federal law between 1992 and 2021.

For that group of individuals, the pardons will likely be transformative. Having a federal drug conviction on your record puts up major roadblocks in life, on everything from federal student aid to job applications. Biden’s move means that people whose only crime was possessing a plant that’s legal in many states will be able to fully participate in society again.

How about the call for state level pardons?

Here in Minnesota there aren’t that many people serving time for marijuana possession alone. According to the state Department of Corrections, in 2020 there were 39 people in Minnesota prisons for marijuana charges. Only a subset of those people, if any, are serving time only for simple possession. 

Minnesota does, however, cite thousands of people for possession each year. According to the latest state data there were over 6,000 marijuana arrests last year, with 90% of those being citations akin to a traffic ticket. People who have been cited multiple times can face more serious consequences. Black Minnesotans are disproportionately likely to be cited for marijuana, despite using the drug at roughly the same rate as whites.

Because Minnesota pardons are handled by a board consisting of the governor, the attorney general and the chief justice of the state supreme court, Gov. Tim Walz doesn’t have the authority to unilaterally heed the president’s call. But if instituted, a blanket possession-only pardon could eliminate the negative effects of marijuana arrests and citations. Among other things, that could make it easier for those affected to obtain employment, housing, student aid and other services.