By Youhanna Haddad
On October 6th, 2021, President Joe Biden issued a blanket pardon of those federally convicted of marijuana possession, noting that “no one should be in jail just for using or possessing marijuana.” This pardon, while seeming huge, releases exactly zero prisoners as no American is in federal prison for simple marijuana possession. Biden further stated that the federal government’s classification of marijuana as more serious than fentanyl “makes no sense,” with the attorney general and Department of Health and Human Services reportedly initiating a process to review marijuana’s scheduling. “Too many lives have been upended because of our failed approach to marijuana,” Biden said. “It’s time that we right these wrongs.”
Biden’s pardon disrupted the more than a century-long history of anti-marijuana policy at the federal level. While the pardon affects but a small minority of total possession convictions, the potential rescheduling or even descheduling of marijuana has not been seriously considered in the United States since the late 1980s. This is thanks in large part to the Controlled Substances Act, which schedules drugs without any regard to their scientifically understood qualities.
To examine the eclectic legal quagmire that is marijuana prohibition, one must explore the history of the plant: its use over time and geography. While the first culture to use marijuana frequently changes as anthropologists continue uncovering older instances of use, it is widely acknowledged that the psychoactive variety of the plant has been consumed for over two millennia. Little to no scholarship has uncovered any historical use of marijauna leading to the decline of living standards anywhere near the level of drugs such as opium.
In the United States, the first marijuana regulations appeared in the aftermath of the Mexican-American War in the mid-19th century. Motivated by the white-supremacist ideology of Manifest Destiny, the United States government pushed westward, running into the then much larger nation of Mexico. After the Mexican-American War, thousands of Mexicans found themselves in newly “American” territory.
To avoid sharing resources, white-American settlers employed a mixture of vigilante and state-sponsored violence to subjugate the Mexican population. They fixated on Mexican use of “locoweed” — a slang term for marijuana — and used prohibition as a means of subjugation. Criminalization thus turned Mexicans into an outlaw class. This served to both reign in the Mexican population and reinforce settler propaganda regarding the “Mexican Menace.”
But it wasn’t just Mexicans who became associated with marijuana around this time. The global phenomenon of jazz music was well underway by the early 20th century. An art form with unmistakably black roots, the popularity of jazz in urban centers led to black male performers gaining fame across the United States.
Concerns over white women in jazz clubs potentially having sexual relations with these men incited panic, particularly in white, bourgeois families. Worrying their daughters might be mesmerized by the siren song of the performers, they sought to restrict the influence of the jazz wave. This manifested in a reinvigorated opposition to marijuana — a known favorite of many jazz performers such as Cab Calloway, whose song ‘Reefer Man’ lauds the drug’s benefits.
White imagination thus associated Latino and black peoples with marijuana. This set the stage for white outrage at the drug in order to suppress both populations. Rhetoric focused on the potential of marijuana to be used by men of color to dull the inhibitions of white women, facilitating their seduction. While the reality may have been that white women were simply interested in relations with these men, or wanted to explore jazz nightlife, the settler masses adopted this hyper-sexualized rhetoric. The newly established Federal Bureau of Narcotics capitalized on these racist lies in the early 1930s, with leader Harry J. Anslinger proclaiming that marijuana use promoted interracial sex:
“There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz and swing, result from marijuana usage. This marijuana causes white women to seek sexual relations with Negroes, entertainers, and any others.”
This rhetoric, which ignored widespread white use in order to racialize the issue, was successful in convincing Congress to pass the first truly restrictive federal regulation of marijuana: The Marijuana Tax Act of 1937, which effectively made the drug illegal to possess or distribute. It took until 1969 for an infamous Supreme Court case to invalidate the law for its violation of 5th Amendment protections against self-incrimination. One year later, President Richard Nixon signed the Controlled Substances Act, which classified marijuana as a Schedule 1 drug, meaning the federal government did not recognize any medicinal value and recognized a high potential for abuse.
While obviously nonsensical, this scheduling seemed to make sense to John Ehrlichman, who served as domestic policy chief under Nixon. In a 1994 interview, Ehrlichman stated that there was significant political motivation from the Nixon administration to target certain communities through the Controlled Substances Act. He explained that:
“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the anti-war left and black people. You understand what I'm saying? We knew we couldn't make it illegal to be either against the war or black, but by getting the public to associate [them with drugs] we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did."
Nixon’s presidency is widely recognized as a particularly embarrassing chapter in American history, largely due to the Watergate scandal. Only escaping the scandal through a presidential pardon, Nixon was caught red-handed by the nation and world. In light of his crimes, it is unsurprising that the administration sought to quell political opposition through the legal route provided by the Controlled Substances Act.
Today, arrests for marijuana possession follow the same racist logic that birthed prohibition. In 2018, black Americans were 3.64 times more likely than whites to be arrested for marijuana possession. In Montana and Kentucky, they were over 9 times more likely to be arrested. This is despite the fact that black and white Americans use marijuana at similar rates.
There is no state, including all states where marijuana is legal, that arrests white and black citizens at equal rates. Even in Colorado — the first state to legalize recreational use — black people are 1.54 times more likely to be arrested for marijuana possession (even “legal” states have possession limits).
Incredibly, there are 19 counties in the United States where black people are more than 20 times more likely than whites to be arrested for marijuana. In Georgia’s Pickens County, black people are over 97 times more likely to be arrested! These statistics demonstrate the racist nature of marijuana enforcement — an enforcement that has never separated itself from its roots as a tool of subjugation of nonwhite populations.
In the best-case scenario, Biden’s directive to reschedule marijuana would result in complete descheduling. That means marijuana would no longer be prohibited by the Controlled Substances Act. While this would undeniably be an overdue victory, it wouldn’t expunge or pardon any past convictions from draconian laws that unjustly decimated generations of black communities. Descheduling alone, therefore, does little to right the wrongs Biden claims to be so concerned about. In order to properly address this state-sponsored terror campaign, all prisoners whose charges derive from marijuana possession must be freed and their records expunged. Anything less is a frivolous distraction masquerading as a step toward justice while keeping the victims of prohibition in bondage.
