Last May, the Department of Justice (DOJ) proposed a rule that would move marijuana from Schedule I of the Controlled Substances Act, the most restrictive category, to Schedule III, which includes prescription drugs such as Tylenol with codeine, ketamine, and anabolic steroids. The public comment period for that proposed rule expired yesterday. According to an analysis by the Drug Policy Alliance, most of the commenters thought the DOJ proposal was too timid: Nearly 70 percent of the 30,000 or so comments favored "descheduling, decriminalizing, or legalizing marijuana at the federal level."
That breakdown jibes with survey results indicating that 70 percent of Americans support marijuana legalization. And judging from the positions that she took as a California senator and a 2020 presidential candidate, Vice President Kamala Harris is one of those Americans. Although she was a latecomer to the cause, Harris, unlike the man she is poised to replace as the 2024 Democratic presidential nominee, has repeatedly urged the repeal of federal pot prohibition.
As USA Today notes, "Harris has been criticized for aggressively prosecuting weed-related crimes when she was California's attorney general and San Francisco's district attorney, particularly given the racial disparities in punishment nationwide." She opposed a California legalization initiative in 2010, when she was the San Francisco district attorney; laughed at a question about legalization in 2014, when she was running for attorney general against a Republican who favored it; and declined, as California's attorney general, to take a position on the 2016 initiative that finally legalized recreational use in her state. She did not embrace legalization until 2018, around the same time that John Boehner, the former Republican speaker of the House, became a cannabis industry lobbyist.
"We need to decriminalize marijuana nationwide, not bring back the worst days of the War on Drugs," Harris wrote in a January 2018 Medium essay, rebuking then–Attorney General Jeff Sessions for rescinding a DOJ memo that urged federal prosecutors to leave licensed cannabis suppliers alone as long as they were complying with state law. Later that year, Harris co-sponsored the Marijuana Justice Act, which had been introduced by Sen. Cory Booker (D–N.J.) in August 2017. That bill would have removed marijuana from Schedule I and eliminated federal criminal penalties for people who grow, distribute, or possess it. The bill also would have ordered the expungement of "convictions for marijuana use or possession."
In 2019, Harris was the Senate sponsor of the Marijuana Opportunity Reinvestment and Expungement Act, which likewise would have repealed the federal ban. It also would have created "an automatic process" for "the expungement, destruction, or sealing of criminal records for cannabis offenses"—a broader category than the convictions covered by the earlier bill. "Times have changed," Harris said. "We need to start regulating marijuana and expunge marijuana convictions from the records of millions of Americans so they can get on with their lives."
During her brief and unimpressive bid for the 2020 Democratic presidential nomination, Harris promised that she would "take action to legalize marijuana, further reform federal sentencing laws, end private prisons and the profiting off of people in prison, and push states to prioritize treatment and rehabilitation for drug offenses." She also said she would seek to "expunge records for marijuana offenses."
After she became President Joe Biden's running mate, Harris was wedded to a marijuana reform agenda that was notably less ambitious. Unlike Harris and the other Democratic contenders, Biden resisted legalization, saying he was waiting for research that would definitively resolve the question of whether marijuana is a "gateway" to other drugs. Instead, he promised to "decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions," both of which would require new legislation that he never pursued.
Biden also promised to "support the legalization of cannabis for medical purposes, leave decisions regarding legalization for recreational use up to the states, and reschedule cannabis as a schedule II drug so researchers can study its positive and negative impacts." Although the rule that the DOJ proposed goes further than that last action item, it still does not legalize marijuana for medical purposes, which would require regulatory approval of specific cannabis-based products. And while the DOJ under Biden has continued to refrain from targeting state-licensed marijuana businesses (as it did even under Sessions, despite his anti-pot bluster), Biden's opposition to legalization precluded resolution of the conflict between state and federal marijuana laws, leaving the recreational cannabis industry with no protection aside from prosecutorial discretion.
Biden also said he would "end mandatory minimums" and "end, once and for all, the federal crack and powder cocaine disparity." That sounded more ambitious than Harris' goal to "further reform federal sentencing laws." But these are two other promises that went unfulfilled.
As vice president, Harris has joined her boss in exaggerating the extent of his drug policy accomplishments. "We changed federal marijuana policy, because nobody should have to go to jail just for smoking weed," she proudly proclaimed in a February 2024 video explicitly aimed at "young voters." That claim was doubly misleading.
At that point, Biden had not actually "changed federal marijuana policy." After a review that Biden ordered, the Department of Health and Human Services (HHS) had recommended moving marijuana to Schedule III. But the DOJ had not yet accepted the HHS recommendation, which had provoked resistance from the Drug Enforcement Administration. Even today, marijuana remains in Schedule I, pending finalization of the proposed DOJ rule.
Although Harris, echoing Biden, said "nobody should have to go to jail just for smoking weed," that rarely happens. And while Biden had issued a mass pardon for people convicted of simple marijuana possession under federal law and the Code of the District of Columbia, it excluded people convicted of growing or distributing marijuana, did not free a single prisoner, and applied to a tiny fraction of possession cases, which are typically prosecuted under state law. Nor did Biden's pardons "decriminalize the use of cannabis," which remains a federal offense punishable by a minimum $1,000 fine and up to a year in jail.
"We have pardoned tens of thousands of people with federal convictions for simple marijuana possession," Harris bragged in May, repeating a claim she had made during an appearance in South Carolina in February and at a "roundtable conversation about marijuana reform" the following month. To justify that figure would require "motivated math," according to Douglas Berman, a sentencing expert at the Ohio State University's Moritz College of Law. The calculation, which could push the number of pardon recipients just above 20,000, would hinge on including Washington, D.C., arrests from the mid-1970s on and assuming about 15 percent resulted in convictions, which Berman said is "reasonable for a mid-sized city." But "this VP-friendly accounting," he noted, "is entirely back of the envelope," which he saw as "a big problem in this space." And Harris said she was talking about "federal convictions for simple marijuana possession," which would not include charges under the D.C. Code.
As she shifts from cheerleader for the Biden administration to presidential candidate, will Harris take a bolder stance on drug policy reform than her boss has managed? "The vice president has been an even stronger advocate for [ending] any cannabis prohibition and restoring or repairing the harms that it has caused than the president has been," Morgan Fox, political director at the National Organization for the Reform of Marijuana Laws, told USA Today. "In many ways, [she] has been a real leader on this issue, particularly as it relates to criminal justice reform."
Harris' Republican opponent, former President Donald Trump, once supported the legalization of all drugs, saying in 1990 that he hoped that "people will start to realize that this is the only answer; there is no other answer." As a Republican presidential candidate 25 years later, Trump claimed he was just suggesting legalization should be studied. He said states should be free to set their own marijuana policies. But he also expressed objections to legalization, saying "it is bad" and had caused "some big problems" in Colorado. And as president, Trump supported Sessions' ostensibly tough stance on state-legal marijuana businesses, saying through his press secretary that he "believes in enforcing federal law…regardless of what the topic is, whether it's marijuana or whether it's immigration."
On drug policy more generally, Trump has gone back and forth. As president, he decried "very unfair" drug penalties, commuted the sentences of nonviolent drug offenders, signed a sentencing reform bill, and criticized Biden's record of pushing draconian drug laws that disproportionately harmed African Americans. He has promised to free Ross Ulbricht, who is serving a life sentence for running Silk Road, an online marketplace used by illegal drug vendors. But Trump also implausibly insists that a determined effort can stop drugs from entering the country and backs the death penalty for drug dealers.
Depending on which version of Trump she contends with, Harris could have an opportunity to take a contrasting drug policy stance that is more compassionate and enlightened. But that might not fit well with her rhetorical strategy of depicting the race as a contest between "a criminal" and "a prosecutor."
Those who are inclined toward optimism can find some support in Harris' February 2019 appearance on the syndicated radio show The Breakfast Club. "Have you ever smoked?" Charlamagne tha God, the show's co-host, asked. "I have," Harris replied. "And I inhaled."
That admission was not exactly brave at the time, and another comment got Harris into hot water with her father, Stanford economist Donald J. Harris. "They say you oppose legalizing weed," Charlamagne tha God said. "That's not true," Harris replied. "Half of my family is from Jamaica. Are you kidding me?"
The elder Harris was offended. "Speaking for myself and my immediate Jamaican family, we wish to categorically dissociate ourselves from this travesty," he said.
More impressive than Harris' confession or her lame Jamaica joke was her answer when she was asked whether she might use marijuana again "when it is legalized throughout the country." Harris replied that "it gives a lot of people joy, and we need more joy."
That simple observation marked a contrast with politicians like George W. Bush and Marco Rubio, who declined to discuss their own experiences with marijuana lest they set a bad example for the youth of America, and from politicians like Barack Obama and Ted Cruz, who admitted smoking pot but portrayed it as a terrible mistake. People like marijuana because marijuana is fun, and fun is important—too important to be ignored by legislators who presume to tell us which kinds are acceptable.
The post Unlike Biden and Trump, Kamala Harris Has Repeatedly Supported Pot Legalization appeared first on Reason.com.
