Two members of a criminal justice task force organized by presumptive Democratic presidential nominee Joe Biden and former rival Sen. Bernie Sanders (I-VT) recently discussed why they feel the criminalization of marijuana is an untenable policy, with one—a former U.S. attorney general—suggesting that even drugs such as opioids and cocaine should be removed from the criminal justice system’s purview.
Another member, who is also a former federal prosecutor, argued that the former vice president’s proposal to decriminalize marijuana is insufficient and should be replaced with a call for broader cannabis legalization.
Former Attorney General Eric Holder said in a C-SPAN appearance last week that racial disparities in drug enforcement have long been a problem, and the solution is to treat such offenses as a public health issue rather than a criminal justice one.
“Think about the crack epidemic and how we dealt with it there. We made it a criminal justice problem, we prosecuted people, we put people in jail,” he said. “Now we’re dealing with the opioid situation and now we’ve declared it—and I think correctly so and I’m not saying this is wrong—but we declared it a public health problem. Two different bodies of people—people perceived as being involved in crack, the use of crack and the use of opioids. It’s a racial component there.”
“I’d like to be able to take out of the system those kinds of determinations and to put law enforcement in places that are needed. But we tend to, again, because of implicit biases, deploy law enforcement to a much greater degree in African American communities and communities of color, which results in disparity when it comes to arrest rates.”
Holder said cannabis represents another example of the problem because “African Americans and whites use marijuana at roughly the same levels, yet you’re four times more likely to go to jail using marijuana if you are a person of color, if you’re black as opposed to if you’re white.”
“If I could change anything, I’d want to take all of that stuff out of the system,” he said. “I think we have the possibility now, given all the protests that we have seen.”
While Holder didn’t explicitly use the words “legalization” or “decriminalization” to describe his views on how drugs should be handled, those polices would generally be implicated when taking them “out of the system” of law enforcement. The former attorney general has previously said he would vote to legalize marijuana if he were in Congress, though he declined to reclassify the drug under federal law when he had the power to do so during his time leading the Justice Department.
Watch Holder discuss marijuana and drug policy below:
In an interview with NPR that was published last week, another member of the Biden-Sanders task force, former federal prosecutor Chiraag Bains, said that while he’s encouraged that Biden has made modest evolutions in his criminal justice platform, “we need a specific agenda and it needs to be bold.”
“I do see that the vice president is moving that direction,” he said. “I just think we need to do more.”
Ideally, “more” will involve Biden moving past his opposition to marijuana legalization and embracing the policy change ahead of the November election. At this stage, the presumptive nominee has stopped short of backing the reform move despite its popularity, particularly among Democratic voters. Instead, he’s proposed decriminalizing cannabis possession, federally rescheduling it, expunging prior records, legalizing medical use and letting states set their own policies.
Bains, who was appointed to the task force by Sanders, said that mere decriminalization doesn’t prevent some of the systemic issues that marijuana prohibition has created.
“Decriminalization typically means that you don’t have a criminal penalty, but you could still be issued a civil fine. And then there are other kinds of consequences that could follow from that,” he said. “It’s still illegal conduct. If possession of marijuana is just decriminalized and that is the hook for extensive police involvement in people’s lives, and if you haven’t addressed the underlying systemic problems in policing and the justice system overall, then people could continue to be stopped and searched and frisked and so forth.”
It’s not clear whether the task force will formally recommend that Biden adopt a pro-legalization platform—or if he would accept that recommendation even if they did. Pressed repeatedly on the issue, Biden has continued to argue that more research should be done before enacting broad reform.
He also recently indicated that his personal experience knowing individuals who consume cannabis has not convinced him that the plant should be legal for recreational use.
But it is the case that a majority of members on the task force favor legalization—something his former primary rival Sanders has long advocated for.
Biden’s campaign could feel additional pressure to have the candidate back legalization to push back against the image of him as an architect of punitive anti-drug laws that disproportionately impacted communities of color. Biden’s record as a senator who authored bills further criminalizing drugs is being leveraged by the Trump campaign, which is attempting to cast the incumbent president as the criminal justice reform candidate.
For the time being, the former vice president is stuck in a criminal justice rut. On the one hand, progressives lament that he’s maintaining opposition to policies like cannabis legalization and defunding the police. On the other hand, conservatives are attempting to tie him directly to the so-called “radical left” despite the fact that he’s made clear he’s not willing to meet their demands.
Last week, for example, Biden said $300 million should be invested in law enforcement for community policing training at a time when protestors are calling for defunding. He also renewed his call for mandatory drug rehabilitation as an alternative to incarceration for drug offenses.
“We must remain vigilant of alternate ways the state can inflict violence on marginalized communities,” Maritza Perez, director of national affairs for Drug Policy Action, said in a press release on Thursday. “One of those ways is through mandating people to receive treatment they do not want. Many of the same constructs that led to mass criminalization and incarceration are behind involuntary and coercive treatment, including racism, stigmatization, ableism, and profit over people.”
“Involuntary and coercive treatment are billed as the solution to the problem of people who are unwilling to enter treatment,” she said. “The root problem, however, is systematic inequality and lack of access to the resources, including attractive evidence-based substance use disorder treatment, that help people to live healthy, self-sufficient lives. Biden’s proposal ignores this and is merely an extension of our country’s punitive approach to drug use.”