Joe Biden has a problem with pot

When it comes to pot in the Democratic Presidential Primary, Joe Biden is the odd man out

Published April 25, 2019 7:30AM (EDT)

 (Getty/Scott Olson)
(Getty/Scott Olson)

This article was produced by Drug Reporter, a project of the Independent Media Institute.

The ever-swelling field of Democratic presidential contenders has plenty of things to disagree about and plenty of issues where candidates can try to set themselves apart from the pack. But on the issue of marijuana policy, support for some form of marijuana legalization is almost universal.

With one glaring exception: Joe Biden. The former vice president already leads the polls even though he has not formally announced—that is expected to happen this week—but his history as a drug warrior and his last-century attitudes toward weed may well be a drag on his effort to reinvent himself as a 21st-century Democrat.

Since the last time Biden ran for elective office in 2012, the marijuana policy terrain has undergone a seismic shift. The first two states to legalize marijuana did so on the night of Biden’s reelection as Obama’s vice president. Now, there are 10 legal states, as well as Washington, D.C., and two U.S. territories. Two or three more states could still join those ranks this year.

And public opinion has shifted dramatically as well. A CBS poll released last week had support for legalization at 65 percent, an all-time high for that poll and in line with other recent poll results on the topic. The Democratic field can read poll numbers, and that’s evident from the positions they are staking out.

Vermont Sen. Bernie Sanders was first out of the gate on legalization, filing the Senate’s first-ever legalization bill in 2015 and making it a cornerstone of his 2016 campaign rhetoric. Sanders has also signed onto New Jersey Sen. Cory Booker’s Marijuana Justice Act, reintroduced in February, and he’s not the only contender to do so. Also supporting the bill are Sens. Kirsten Gillibrand (D-NY), Kamala Harris, D-CA., and Elizabeth Warren, D-MA.

Warren also sponsored the STATES Act, which would block the federal government from interfering with state-legal marijuana programs. One of her cosponsors is yet another Democratic contender, Minnesota Sen. Amy Klobuchar. Klobuchar also told the Washington Post recently that she is down with legalization.

Two House members seeking the nomination, Reps. Tulsi Gabbard of Hawaii and Tim Ryan of Ohio, have signed onto the Marijuana Justice Act’s House companion bill, while Gabbard and another contender, California Rep. Eric Swalwell, are cosponsors of the Ending Federal Marijuana Prohibition Act. That bill would reclassify marijuana at the federal level and protect pot commerce in states that have legalized it.

Beto O’Rourke isn’t in Congress anymore, but he has a strong drug and marijuana policy history going back to his days on the El Paso city council a decade ago. While he was in Congress, he supported bills that aimed at protecting legal states from federal intervention and just plain ending federal pot prohibition. Since announcing his presidential bid, O’Rourke has again called for the end of federal pot prohibition.

John Delaney isn’t in Congress anymore, either, but when the Maryland Democrat was there, he cosponsored a number of marijuana reform bills, including the 2013 Respect State Marijuana Laws Act. In March, Delaney told a CNN Town Hall that marijuana should be reclassified at the federal level.

Among Democratic presidential contenders who aren’t current or former senators or congresspeople, support for marijuana legalization is just as strong. South Bend, Indiana, Mayor Pete Buttigieg has said that marijuana legalization is “an idea whose time has come,” while former Housing and Urban Development Secretary Julian Castro is calling for legalization and expungement of arrest records, and political neophyte Andrew Yang had made legalization part of his platform.

Washington Gov. Jay Inslee, whose state was among the first to legalize it, told CBS News Radio it was time for the rest of the nation to follow. He has also announced plans to pardon thousands of misdemeanor pot possession charges. Former Colorado Gov. John Hickenlooper, whose state beat Washington to the punch by a matter of hours, didn’t support legalization at home in 2012 and isn’t quite ready to end federal pot prohibition now, telling a CNN Town Hall in March that he would instead support leaving it up to the states.

And then there’s Joe Biden. He has a terrible record on marijuana and drug policy going back to his days as chair of the Senate Judiciary Committee. His signature piece of crime legislation, the 1994 Violent Crime Control and Law Enforcement Act, established the notorious 100:1 weight disparity in sentencing crack and powder cocaine offenders, sending a generation of black men to prison for years for amounts of the drug that could be contained in a cigarette pack. It took five grams of crack to generate a five-year mandatory minimum prison sentence, but 500 grams of powder cocaine to earn the same amount of time.

He has admitted he “hasn’t always been right” about drug policy, and he’s certainly right about that. Besides pushing through draconian crime bills, he also takes credit for dreaming up the notion of a “drug czar,” and he worked for years with the Reagan administration to turn that dream into fact. In 1989, the White House Office of National Drug Control Policy (ONDCP—the drug czar’s office) came into being.

ONDCP pushed for more arrests, more prisons, and more federal funding for the war on drugs, but it did more than that, and Biden helped there, too. During the 1996 reauthorization of ONDCP, Biden voted for a bill that basically required the drug czar to block any studies of marijuana legalization and “take such actions as necessary to oppose any attempt to legalize the use of such substance (in any form).” That is, Biden supported requiring the drug czar to lie by law about any benefits of marijuana legalization.

From cheerleading asset forfeiture to helping make America the world’s leading jailer to encouraging the militarization of policing in the name of the drug war, Biden was there. He didn’t just vote for bad laws; he helped write them and ensure they got passed.

Perhaps recognizing just how out of step he is, Biden has not had much of anything to say about drugs or marijuana policy in recent years, but what little he has said doesn’t indicate that he’s come around on the issue.

In remarks on marijuana legalization, in a 2010 ABC News interview, he promoted the debunked “gateway theory” that smoking pot leads inexorably to the needle, saying: “There’s a difference between sending [someone] to jail for a few ounces and legalizing it. The punishment should fit the crime. But I think legalization is a mistake. I still believe it is a gateway drug.”

Four years later, and just weeks after President Obama said that marijuana is no more dangerous than alcohol, Biden still wasn’t ready to go any further: “I think the idea of focusing significant resources on interdicting or convicting people is a waste of resources,” he told Time magazine. “That’s different than legalization. Our policy for our administration is still not legalization, and that is and continues to be our policy.”

It’s now been five years since Biden took that stance, and a lot has changed. The question is whether Biden has changed—or whether he can. And whether he can overcome his drug warrior past in the Democratic Party of 2020.

By Phillip Smith

Phillip Smith is a senior writing fellow and the editor and chief correspondent of Drug Reporter, a project of the Independent Media Institute. He has been a drug policy journalist for the past two decades. He is the longtime author of the Drug War Chronicle, the online publication of the non-profit, and has been the editor of AlterNet’s Drug Reporter since 2015. He was awarded the Drug Policy Alliance’s Edwin M. Brecher Award for Excellence in Media in 2013.

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