By Phillip Smith
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 marijuana 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 on the night of Biden’s reelection as Obama’s vice-president. Now, there are 10 legal states, as well as Washington, DC, and two US 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%, 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 cannabis 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 marijuana prohibition. Since announcing his presidential bid, O’Rourke has again called for the end of federal marijuana 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 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 newcomer 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 people for their misdemeanor marijuana 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 prohibition now, telling a CNN Town Hall in March that he would instead support leaving it up to the states.
And then there’s 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, along with numerous other policy ills, 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.
The provision itself wasn’t Biden’s brainchild, and former Biden aides told the New York Times he wasn’t for the mandatory minimums. But neither did he didn’t stop the provision from getting included in the bill. Biden did push for reform of the provision, and other criminal justice reforms like reentry, since at least 2007, according to the Times.
Biden 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. Sometimes the ONDCP has been a vehicle for positive if incremental reforms, At other times, though it’s been used for propagandizing, and for government-sponsored campaigning against legalization efforts.
While former drug czars Barry McCaffery, Lee Brown and others talked about relying less on incarceration, under William Bennett the ONDCP pushed for more arrests, more prisons, and more federal funding for the war on drugs. 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 if there are any benefits of marijuana legalization.
If the office has sometimes been a counterweight to straight law enforcement voices in DOJ, it hasn’t always helped the agenda of shifting drug policy toward public health. When the Clinton administration was considering lifting a ban on the use of federal AIDS grant funds given to states to support syringe exchange programs, McCaffrey opposed it, despite overwhelming scientific evidence — advocates believe that if Donna Shalala had gotten on a certain Air Force One flight, instead of McCaffrey, the ban would have been lifted then.
Other than criminal justice reform, Biden has not had much to say about drugs or marijuana lately — perhaps realize how out of step he’s become. But what little he has said doesn’t indicate that he’s come around on marijuana policy.
In remarks on marijuana legalization, in a 2010 ABC News interview, he promoted the debunked “gateway theory” that smoking pot lead inexorably to the needle, saying: “There’s a difference between sending 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.
(This article was prepared by StoptheDrugWar.org’s 501(c)(4) lobbying nonprofit, the Drug Reform Coordination Network, which also pays the cost of maintaining this website. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code and does not pay for reporting that could be interpreted or misinterpreted as doing so.)