Rectifying Past Wrongs: the Biden Administration’s Limited Progress in Drug Decriminalization

By: Timothy McLendon

In May 2023, the Biden Administration publicly endorsed legislation that would expand the criminalization of substance use by introducing new mandatory minimum sentences associated with fentanyl. The endorsement represents a broader concern that the administration is quickly returning to “tough on crime” style policies that fueled the “War on Drugs” and exacerbated mass incarceration. These concerns are grounded in the president’s historic role as a leading legislative architect of the War on Drugs–having authored nearly every significant federal crime bill in the 1980s and 1990s. President Biden has previously acknowledged that on issues related to drug criminalization, he is “part of the problem that [he has] been trying to solve.” However, his record as president has largely failed to repair the intergenerational, legislative violence inflicted upon Black, brown, and Indigenous communities. As a young, jaded African American man, I write this blog in the earnest hope that President Biden’s commitment to ending racial disparities in our court and prison systems isn’t simply political theater but a true promise to repair the legacy of the War on Drugs for those who look like me.

President Biden’s Drug War Legacy

Understanding the shortcomings of the administration’s drug decriminalization strategies requires understanding the historical context of the War on Drugs and President Biden’s unique role in it. In 1986, then-Senator Joe Biden authored the Anti-Drug Abuse Act of 1986–a critical component of the broader War on Drugs that devastated low-income communities of color through mass criminalization and systemic police violence. The law strengthened carceral disparities between Black and white drug users by mandating a five-year minimum sentence for trafficking five grams of crack cocaine while requiring 500 grams of the chemically equivalent powder cocaine to incur the same conviction. Later in 1994, Sen. Biden spearheaded a deeply controversial crime bill that funded 100,000 new cops and accelerated mass incarceration by increasing federal funding to states that impose harsher sentences.

The Biden Administration’s Drug Decriminalization Strategies

In its first two years, the Biden Administration has confronted this legacy through two notable yet incremental policy reforms that address drug decriminalization—federal pardons for simple marijuana possession and new DOJ prosecutorial guidance to reduce sentencing disparities between crack and powdered cocaine. While welcomed, these reforms fall short of the robust policy reforms necessary to repair the legacy of America’s War on Drugs.

Federal Pardons for Simple Marijuana Possession

Last October, the White House issued mass pardons for select marijuana-related offenses. The text of the pardon highlighted the disproportionate rates of Black and brown people incarcerated for marijuana-related crimes despite similar rates of substance use. While the pardons have affected over 6,500 individuals—reducing permanent barriers to housing, job placement, and other benefits—notable limitations reduce the impact of pardons. For example, the president’s pardon authority only extends to federal offenses and does not affect the sheer bulk of individuals with state-level marijuana records. Further, the rule only applies to simple possession charges and doesn’t apply to individuals who may have additional charges related to their conviction. Moreover, the ruling fails to protect immigrants who can still be deported for marijuana possession. Also, the pardons don’t apply to people charged after October 6, 2022. As a result of these restrictions, media reports indicate that no one was actually released from prison due to the president’s program. However, the Biden Administration did entreat state governors to commit to developing their own pardon programs. States such as Oregon, Colorado, Nevada, and Illinois have already followed suit, with Oregon going as far as forgiving more than $14 million in unpaid fines and fees, with 47,144 total convictions removed. Some states like Arkansas, Tennessee, and Nebraska have followed suit in issuing similar marijuana pardons. However, more work is needed to build comprehensive drug decriminalization strategies nationwide.

DOJ Memo on Prosecuting Crack and Powder Cocaine

In December, the U.S. Department of Justice (DOJ) issued a memorandum instructing federal prosecutors to forego mandatory minimums in drug cases lacking other aggravating factors such as substantial drug distribution or violent behavior. Notably, the DOJ memo explicitly addresses the crack and powder cocaine dilemma by requiring federal prosecutors to present drug charges in a manner that doesn’t trigger federal mandatory minimum sentences. Prosecutors must also circumvent the cocaine disparity by charging crack cases similar to powder cocaine cases. The guidance includes a range of limitations and challenges. For example, a future administration can change the DOJ’s guidance. Further, the guidance isn’t retroactive, excluding generations of people inordinately imprisoned due to then-Sen. Biden’s 20th-century racist sentencing policies.

The president’s first term has highlighted that the administration lacks the same zeal to repair the harms of the War on Drugs as President Biden displayed in legislating it 40 years ago. It’s not enough to simply incarcerate at more equitable numbers or to pardon drug offenses on such a small scale. The administration must embrace transformative, youth-led, and community-centered visions for drug decriminalization as part of a more considerable effort to repair the impact of 50 years of mass incarceration and criminalization. Rather than return to failed, racist strategies like mandatory minimums, policymakers should embrace reparative justice for the War on Drugs, develop more robust federal and state pardon programs, and support anti-carceral, non-punitive strategies emphasizing harm reduction and community wellness.