Next attorney general must embrace marijuana law reforms

On the campaign trail, President-Elect Joe Biden frequently voiced his support for marijuana policy reform. He, along with running-mate Kamala Harris — the lead Senate sponsor of the Marijuana, Opportunity, Reinvestment, and Expungement (MORE) Act — pledged to:

• Decriminalize activities involving the personal use of marijuana

• Expand medical cannabis access.

• Expunge the records of those with past marijuana-related convictions

• Respect the decisions of states that have enacted marijuana legalization

While NORML supports each of these goals, we recognize that the most substantive and necessary policy changes require marijuana’s removal from the federal Controlled Substances Act. Descheduling marijuana in this manner, as is mandated by The MORE Act and other pending legislation, would codify the right of individual states— not the federal government— to establish their own marijuana policies free from undue federal interference or the threat of federal prosecution. But, realistically, enacting such legislative changes is going to require the support of Republican senators. Thus far, GOP Leadership in the Upper Chamber has provided little indication that they would go along with such an agenda.

As a result, it is incumbent upon the Biden/Harris administration to appoint an attorney general who shares their vision and direct U.S. Attorneys to take a ‘hands-off’ approach to the 36 states that have legalized marijuana for either medical or adult-use.

Doing so would hardly be a novel approach. In fact, in the second term of the Obama administration, Department of Justice officials issued explicit guidance to U.S. Attorneys in the form of the ‘Cole memorandum’— which directed federal prosecutors not to interfere with state legalization efforts and those licensed to engage in the plant’s production and sale. This guidance was promptly rescinded by President Trump’s first Attorney General, Jeff Sessions— a decision that created unnecessary instability in the marijuana marketplace. Current AG William Barr has been a little better, having used his Department to harass state-licensed marijuana businesses needlessly.

The results of the 2020 election once again affirmed that the majority of Americans support legalizing marijuana. Millions of voters also cast votes resoundingly approving multiple statewide ballot measures legalizing and regulating the possession, use, and commercial sale of marijuana for adults. These voters represent a broad and diverse swath of the American electorate, with voters in deep-red states (Arizona, Montana, and South Dakota) joining with voters in New Jersey, a blue state, to enact legalization. Voters in Mississippi and South Dakota also approved ballot measures approving medical marijuana access. Since 1996, voters have decided affirmatively on 35 separate ballot measures legalizing cannabis (22 legalizing medical marijuana and 13 legalizing adult use). Once these latest laws are enacted, one out of every three Americans will live in a jurisdiction where the adult use of marijuana is legal under state law. 

The next attorney general must be someone who reflects and embraces this public consensus. Americans deserve and demand an attorney general who will respect the will of the people and who will let states determine their own marijuana policies, unfettered by the federal government and following America’s longstanding federalist principles. They deserve an attorney general who will direct U.S. Attorneys not to interfere in, disrupt, or add unnecessary uncertainty to state-licensed marijuana markets. They deserve an attorney general who will marshal the Justice Department’s resources to review and pardon those convicted of federal minor, non-violent marijuana possession crimes. Finally, the American public deserves an attorney general who will acknowledge that the criminalization of marijuana and the stigmatization of those who consume it is a failed public policy that financially burdens taxpayers, encroaches upon civil liberties, engenders disrespect for the law and law enforcement, and disproportionately impacts young adults and communities of color. 

Millions of voters supported President-Elect Biden with the understanding that he would bring about changes to America’s longstanding yet failed marijuana policies. The incoming administration now needs to follow through on their campaign promises. President-Elect Biden needs to demonstrate to these tens of millions of voters, as well as to the countless other Americans who support marijuana-specific reforms but didn’t vote for him, that his administration intends to uphold the campaign promises made by him and Vice President-elect Kamala Harris. The new administration must appoint an attorney general who will facilitate necessary changes in marijuana policies and respect the decisions of those states that have already moved in this direction.

Erik Altieri is the executive director and Paul Armentano is the deputy director of NORML — the National Organization for the Reform of Marijuana Laws. Armentano is the co-author of the book “Marijuana Is Safer: So Why Are We Driving People to Drink?” He is also the chair of the Science Department at Oaksterdam University in Oakland, California.