Preet Bharara:
From Cafe and the Vox Media Podcast Network, this is Stay Tuned in Brief. I’m your host, Preet Bharara. Today we’re going to talk about marijuana and specifically President Biden’s announcement that he is pardoning all individuals convicted on federal charges of simple marijuana possession. To discuss the news and what it means for decriminalization more broadly, I’m joined by my friend Rachel Barkow.
She’s a professor of law at the NYU School of Law, where I also teach. She’s a former member of the US Sentencing Commission and a leading voice on criminal justice issues. She’s also the author of an excellent book called Prisoners of Politics: Breaking the Cycle of Mass Incarceration. Rachel, welcome to the show. Welcome back to the show, I guess.
Rachel Barkow:
Oh, thanks for having me back.
Preet Bharara:
So you and I have been talking about pardons for years. You have been studying and opining on pardons for far longer than that. So the president of the United States, a few days ago, made an announcement. I’ll read part of it and then I’ll ask you some questions.
He says, “First I’m announcing a pardon for all prior federal offenses for the simple possession of marijuana. There are thousands of people who are convicted of marijuana possession, who may be denied employment, housing, or educational opportunities as a result of that conviction. My pardon will remove this burden on them.” So good use of the pardon power? Bad use of the pardon power? Something in between?
Rachel Barkow:
I mean, I guess I want to say that for the most part, any use of the pardon power is a good use of the pardon power, because it’s kind of atrophied. And he hasn’t done very much. But this is a pretty weak set of grants because there really aren’t very many people who have federal convictions for a simple possession of marijuana. It’s no one currently incarcerated.
Preet Bharara:
Can we pause on that for a second? The New York Times says, it’s not sure how many people it affect, but it says that, “They believe 6,500 people were convicted of simple possession between 1992 and 2021. And we don’t know how many of those folks are still around.”
So that’s thousands of folks. Usually we have a pardon, it only helps one or two people at a time. Why isn’t a few thousand significant?
Rachel Barkow:
Well, so that’s the group of people that are potentially in the universe that will benefit from this, but he’s only granting the pardon for this specific conviction of simple possession. So what we don’t know about those 6,500 or so people is whether or not they have another conviction. If they had a simple possession, plus they had a small distribution count, for example, pardoning the simple possession count really doesn’t get them anything because they’ll still be dealing with the burden of their other convictions. And I suspect a decent number of these folks will have that as an issue in their case. So this won’t get them very much.
And then the other issue is just that we have around 18,000, give or take on any given day, people who have filed clemency petitions. They followed all the rules. They filed their petitions. They’ve been waiting in a backlog for years. Some of them five, six years and none of those have moved.
So there’s also just a little bit of this kind of, why did the simple possession of marijuana folks who are already out, how come that was priority one? So it’s kind of just a question of you have limited resources as president, you can’t deal with everything at once. And so it’s always just a question of why this group as opposed to that group. And for my money, I’m always most worried about the people currently incarcerated and the burdens they bear versus people who are already out. But you’re right, and I still do want to say it, it’s good for those people.
Preet Bharara:
So I just want to make… So just to be clear, you’re not saying you wish he hadn’t issued these pardons, you’re just saying it’s not as impressive as you would hoped.
Rachel Barkow:
Right. This is really small ball. So I hope it’s a step in the direction of much more. But it’s like taking a scalpel to the sum total of mass incarceration in the federal system and finding the teeniest, tiniest little space that you could address.
Preet Bharara:
You don’t want to praise at first… Well, we’ll get to what the implications are for this because I wonder what you think about that. So on the one hand, he’s issued this, pardon for a number of people who, by the way, I don’t know who’s getting charged with simple possession in the federal system. We, as a general policy, did not charge simple possession, not just of marijuana, but any narcotics. Simple, personal use possession was as a policy, not something that got charged. That’s why these numbers are so small because of the many, many, many thousands of federal drug convictions over 20 or 30 years, it’s only a few thousand.
Do you have any reaction to the fact that there are even that many charged with simple possession?
Rachel Barkow:
It’s tiny. And I mean, most of the cases that involve simple possession in the federal system are in border districts. So that’s where you see the numbers at their highest. People come over the border, they’re arrested, and they have quantities that either could be large enough to be charged with a distribution count, but they’re given simple possession because it’s what we call these fast track districts where they process the cases more quickly. That’s the bulk of the simple possession cases in the federal system. He did also give pardons though, to people that have simple possession in the District of Columbia.
Preet Bharara:
So that’s probably a lot of them, right?
Rachel Barkow:
Yeah. And that, well… That’s I believe, according to the White House report, I think that’s in addition to the 6,500. I think they think it’s-
Preet Bharara:
Oh, okay.
Rachel Barkow:
-6,500 who have federal-
Preet Bharara:
Outside of DC.
Rachel Barkow:
-possession cases outside of DC. And then there’s probably another few that come from the District of Columbia.
But this is a very small part of the people who are serving sentences for marijuana. And I do think one of the things he was aiming to do was remedy the kind of unjust outcome where you have states where marijuana sales are big money for people now. It’s legal in those states. We see people making money and profiting off it. And yet, we hear we have these people who have convictions for the very same activity.
And really all he did here was kind of give relief to buyers, but he hasn’t done anything to equalize the treatment of sellers. And so I would’ve liked to have seen the distribution of marijuana covered by this pardon, but it is a start. It’s something.
Preet Bharara:
So we were talking about the federal system, and whenever we talked about crime and punishment, we need to make sure that people appreciate that most criminal cases, most incarceration, is a result of state prosecutions. Obviously the president of the United States and our federalist system doesn’t have actual power to do anything about that.
But the second part of his statement here, he says this, “I’m calling on all governors to do the same for state marijuana possession offenses.” Do you think that will have any effect? And does that matter?
Rachel Barkow:
I think it’s always good for the president to use the bully pulpit to indicate issues that he cares about. And I do think the president can be a kind of trendsetter by going out in front of an issue that might give some political cover to a governor that was on the fence.
I mean, truth be told, governors actually took the lead on this ahead of him, because we did have state governors who had given pardons for people for marijuana offenses before Biden did. But this may lead some of the governors who hadn’t yet done that to decide this is a good political move. If Joe Biden made the political calculus that this is a good thing to do right before midterm elections, then the signal might be that this is a winning political issue and governors might decide to do it too.
I mean, I think the most important thing he did that day was neither [inaudible 00:07:39] he himself issued nor this statement to the governors, but his request to have marijuana considered something that should be declassified and rescheduled.
Preet Bharara:
Yeah. So I was going to get to that. You’re jumping ahead, Professor.
Rachel Barkow:
I’m sorry. But that was-
Preet Bharara:
That was third part of his statement and I knew you were going to get to it.
Rachel Barkow:
That was the best part.
Preet Bharara:
So I know you’ve been sort of unimpressed. So with the first part, the second part. So let me read for folks the third part that seems to make you a little bit happier.
Third, the federal government currently classifies marijuana as a schedule one substance, the same as heroin and LSD and more serious than Fentanyl. And he says, “It makes no sense.” And then he says, as you alluded to, “I’m asking the AG and the Secretary of HHS to initiate a process to review how marijuana is scheduled under federal law.” So I guess that’s what I was saying at the beginning. Is this the beginning of something much larger or not?
Rachel Barkow:
I mean, that would be big. That is… It’s hard to… That’s a big deal. I guess I’m trying to figure out the best way to say it.
It’s a big deal, if it gets completely removed as a scheduled drug, that would be monumental, that would be a very big shift. And even if it gets rescheduled, because as you said, right now, it’s in schedule one, which is considered the most dangerous category of drug, which is preposterous, right? It’s actually a little embarrassing.
Preet Bharara:
Can you explain that to folks a little bit about the schedules and what they mean and why it’s preposterous?
Rachel Barkow:
Yeah. So in the 1970s, 1970, I think itself, Richard Nixon signed into law this comprehensive drug legislation that set out that we should have… It’s the Controlled Substances Act and it was a process for classifying various illicit drugs and substances. And there’s five categories. So Schedules 1 through 5 with Schedule 1 being the drugs that we consider to be the most dangerous. These are the ones that should have no medical use and contain a high potential for abuse. So that’s like the worst. We think these are going to be abused and there’s no legitimate good medical use for them. And that’s where marijuana was scheduled initially and has stayed ever since, was as no medical use, most dangerous drug we’ve got. High potential.
Preet Bharara:
Right, alongside heroin, LSD, ecstasy, and some other things.
Rachel Barkow:
Right. So it’s ridiculous because we now have, over half the states, have authorized the use of marijuana for medicinal purposes. So we’ve now had years and years of using marijuana for valid medical reasons. People have found it to be very beneficial for pain management and other medical uses, but it’s still illegal under federal law. And so what this should hopefully do is finally catch federal law up with the reality that in fact, marijuana does have lots of beneficial uses.
It’s not a drug that has a high potential for abuse anywhere close to the drugs that it’s surrounded by here. And so the real question, I think… I’m pretty confident it’s going to leave Schedule 1, unless this process is really broken. I think any rational person looking at facts is going to move it out of Schedule 1. The bigger issue is going to be, does it kind of get removed entirely so that it’s just descheduled, it’s kind of outside of this whole regime entirely?
Preet Bharara:
Well, that’s a big step. It reminds me of this debate that has been going on for a long time where you have the discrepancy in the treatment of powder cocaine and crack cocaine. And I think a lot of people, and you might be one of these people would say, not unreasonably, that they should be treated the same and the weight differential shouldn’t be as great as it was for a very, very long time.
And finally, there was a bipartisan approach to decreasing the differential but not making them equal. Are there any lessons from that here as to whether or not you’ll just move it to another schedule or deschedule it all together?
Rachel Barkow:
I mean, it’s a little different in the sense that the question of crack powder was entirely political, that had to take place in Congress. So it’s the Democrats and Republicans negotiating with each other, trying to figure out what both sides could live with.
This classification decision is different than that, right? This is something that he’s asked his Attorney General and the head of HHS to do. So it’s supposed to be a more objective, more fact-based process than a political one. But having said that, I’m sure politics is part of this, and I’m sure those folks will think about that. So if I had to take a guess, I think it probably stays scheduled, but maybe it’s… Just to give you an example like in Schedule 3, just to take the midpoint of drugs that are scheduled.
Preet Bharara:
Is Diet Coke in schedule three? That’s got to be.
Rachel Barkow:
No Tylenol with codeine is though.
Preet Bharara:
Tylenol with codeine is in Schedule 3?
Rachel Barkow:
Yeah. And Schedule 5 has Robitussin Ac.
Preet Bharara:
If you put marijuana in with Robitussin, that wouldn’t be… Would that be bad in your point of view?
Rachel Barkow:
Well, I guess my point there is that if given that those things are scheduled, you can imagine the argument that says, “Well, let’s not completely remove marijuana.”
And by the way, even if the federal government did that, even if the federal government decided, “You know what, this is just a completely legal substance like oregano and it’s not part of our drug classification at all.” You could still have individual states deciding they wanted to continue to ban it. So it wouldn’t necessarily mean that it would be legal everywhere. Because right now the states vary, right? We have some states that have decided to allow the sale of marijuana and others have not. And if the federal government got out of the business entirely, it would be a state by state kind of a question. What you have right now is this really weird set up where it is illegal under federal law, and yet somehow states have kind of ignored that and they’ve authorized it being sold.
But you could still, in a state that has decided they don’t want to criminalize it as a state matter. And you know, can go, and you can buy marijuana in these states. There’s stores. I’m sure people who live in these parts of the country, we’ve all seen them. You can go in there, you can buy it. But if the federal government tomorrow decided they didn’t like that anymore, they could have a big raid on that store and they could arrest everybody involved. They’ve just chosen to look the other way.
So I think this is another chance for the federal government to kind of figure out a more sensible relationship with what we’ve seen happening in the states.
Preet Bharara:
Technical legal question, because it’s something not clear to folks, if you wanted to change the scheduling of marijuana, can that be done by executive order by the executive agency? Or does it need some involvement of Congress at all?
Rachel Barkow:
I think it was delegated that this is something that can be done by the executive. I think Congress left it in the Attorney General’s authority, but Congress would always have the ability to overrule anything that they did.
Preet Bharara:
You have a sense of where Congress is after the evolution of thinking on marijuana at this moment?
Rachel Barkow:
Well, I have been saying for a while that I think this is a winning political issue to rethink marijuana. I think that, particularly with young voters… I mean, society’s just come a long way from 1970 in terms of how they view this drug. And so I think that there’s a lot of political support on both sides, the kind of more libertarian Republicans and Democrats for really treating marijuana differently.
Having said that, there was already criticism of the Biden order right after it happened by Tom Cotton, for example. So you’re definitely going to have some Republicans who are going to fight this and still talk about marijuana without any evidence as gateway drug, really serious, this is part of Armageddon, or whatever, anarchy. The decline of American civilization.
So I think you’ll still have some that won’t want this, but I think the majority will. And I think they’ll decide this is actually an issue that, for their own political careers, they’re better off on the side of relaxing the restrictions on marijuana.
Preet Bharara:
Here’s a parochial question and then I’ll let you go. And this is an issue maybe doesn’t occur to people, and I wonder how Biden thinks about this. For a long time, and I think it’s still the case, that if you wanted to be an assistant US attorney, a federal prosecutor, someone who works at the Justice Department, a voluntary disclosure of prior marijuana use was disqualifying. Should that be true?
Rachel Barkow:
I don’t think it should be, but it still is the case and nothing about this pardon did anything to change that. And I definitely saw some people making comments on social media about the fact that-
Preet Bharara:
There’s a disconnect. I think it’s very confusing. You have the federal system causes confusion all the time, but this is one, I think you’re exactly right, one that not only is confusing in part because of its evolution over time between the federal folks and the state folks, but also the sort of overlap of political will on the conservative side and the liberal side. Not all, isn’t John Vayner, in part, making a living on supporting legalization of marijuana?
Rachel Barkow:
That is right. He’s one of the leading lobbyists for those folks, and it’s a really lucrative business. But it’s a weird one because since it is still illegal under federal law on the books, they have a really hard time doing things like banking and engaging in financial transactions because they are selling something that is a unlawful to sell under federal law. And there’s big money to be made.
And that that’s the perversity of the regime is that we have predominantly black and brown people, white people too, but disproportionately people of color, who have served really long prison sentences and are still serving them for selling marijuana. At the same time, you have people making millions off of it now in states and the federal government doing nothing about it. And that’s why I’m a little disappointed in this pardon order, because I think it really doesn’t tackle that really grotesque disparity in treatment. And I think if you wanted real equality and justice in these cases, you would just make sure that no one is currently serving time for selling the same product that other people are selling and making millions off of it just. There’s really no justification for that disparity.
Preet Bharara:
Well, maybe. Maybe that’s next final question. How much do you smoke a day?
Rachel Barkow:
Yeah, see I don’t. I’m just sympathetic to the argument.
Preet Bharara:
Okay.
Rachel Barkow:
But I’m a-
Preet Bharara:
You could’ve taken the podcast Fifth Amendment, which you could’ve taken.
Rachel Barkow:
If chocolate were the question we were talking about then I would find myself outraged.
Preet Bharara:
I didn’t ask you about edibles. My kids recently were shocked and mortified that I even knew what edibles were.
Like how do you know that? I’m like, I read.
Professor Rachel Barkow. Thank you so much for joining us.
Rachel Barkow:
Oh, thank you.
Preet Bharara:
For more analysis of legal and political issues making the headlines, become a member of the Cafe Insider. Members get access to exclusive content, including the weekly podcast I co-host with former US attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.
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Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior
Preet Bharara:
From Cafe and the Vox Media Podcast Network, this is Stay Tuned in Brief. I’m your host, Preet Bharara. Today we’re going to talk about marijuana and specifically President Biden’s announcement that he is pardoning all individuals convicted on federal charges of simple marijuana possession. To discuss the news and what it means for decriminalization more broadly, I’m joined by my friend Rachel Barkow.
She’s a professor of law at the NYU School of Law, where I also teach. She’s a former member of the US Sentencing Commission and a leading voice on criminal justice issues. She’s also the author of an excellent book called Prisoners of Politics: Breaking the Cycle of Mass Incarceration. Rachel, welcome to the show. Welcome back to the show, I guess.
Rachel Barkow:
Oh, thanks for having me back.
Preet Bharara:
So you and I have been talking about pardons for years. You have been studying and opining on pardons for far longer than that. So the president of the United States, a few days ago, made an announcement. I’ll read part of it and then I’ll ask you some questions.
He says, “First I’m announcing a pardon for all prior federal offenses for the simple possession of marijuana. There are thousands of people who are convicted of marijuana possession, who may be denied employment, housing, or educational opportunities as a result of that conviction. My pardon will remove this burden on them.” So good use of the pardon power? Bad use of the pardon power? Something in between?
Rachel Barkow:
I mean, I guess I want to say that for the most part, any use of the pardon power is a good use of the pardon power, because it’s kind of atrophied. And he hasn’t done very much. But this is a pretty weak set of grants because there really aren’t very many people who have federal convictions for a simple possession of marijuana. It’s no one currently incarcerated.
Preet Bharara:
Can we pause on that for a second? The New York Times says, it’s not sure how many people it affect, but it says that, “They believe 6,500 people were convicted of simple possession between 1992 and 2021. And we don’t know how many of those folks are still around.”
So that’s thousands of folks. Usually we have a pardon, it only helps one or two people at a time. Why isn’t a few thousand significant?
Rachel Barkow:
Well, so that’s the group of people that are potentially in the universe that will benefit from this, but he’s only granting the pardon for this specific conviction of simple possession. So what we don’t know about those 6,500 or so people is whether or not they have another conviction. If they had a simple possession, plus they had a small distribution count, for example, pardoning the simple possession count really doesn’t get them anything because they’ll still be dealing with the burden of their other convictions. And I suspect a decent number of these folks will have that as an issue in their case. So this won’t get them very much.
And then the other issue is just that we have around 18,000, give or take on any given day, people who have filed clemency petitions. They followed all the rules. They filed their petitions. They’ve been waiting in a backlog for years. Some of them five, six years and none of those have moved.
So there’s also just a little bit of this kind of, why did the simple possession of marijuana folks who are already out, how come that was priority one? So it’s kind of just a question of you have limited resources as president, you can’t deal with everything at once. And so it’s always just a question of why this group as opposed to that group. And for my money, I’m always most worried about the people currently incarcerated and the burdens they bear versus people who are already out. But you’re right, and I still do want to say it, it’s good for those people.
Preet Bharara:
So I just want to make… So just to be clear, you’re not saying you wish he hadn’t issued these pardons, you’re just saying it’s not as impressive as you would hoped.
Rachel Barkow:
Right. This is really small ball. So I hope it’s a step in the direction of much more. But it’s like taking a scalpel to the sum total of mass incarceration in the federal system and finding the teeniest, tiniest little space that you could address.
Preet Bharara:
You don’t want to praise at first… Well, we’ll get to what the implications are for this because I wonder what you think about that. So on the one hand, he’s issued this, pardon for a number of people who, by the way, I don’t know who’s getting charged with simple possession in the federal system. We, as a general policy, did not charge simple possession, not just of marijuana, but any narcotics. Simple, personal use possession was as a policy, not something that got charged. That’s why these numbers are so small because of the many, many, many thousands of federal drug convictions over 20 or 30 years, it’s only a few thousand.
Do you have any reaction to the fact that there are even that many charged with simple possession?
Rachel Barkow:
It’s tiny. And I mean, most of the cases that involve simple possession in the federal system are in border districts. So that’s where you see the numbers at their highest. People come over the border, they’re arrested, and they have quantities that either could be large enough to be charged with a distribution count, but they’re given simple possession because it’s what we call these fast track districts where they process the cases more quickly. That’s the bulk of the simple possession cases in the federal system. He did also give pardons though, to people that have simple possession in the District of Columbia.
Preet Bharara:
So that’s probably a lot of them, right?
Rachel Barkow:
Yeah. And that, well… That’s I believe, according to the White House report, I think that’s in addition to the 6,500. I think they think it’s-
Preet Bharara:
Oh, okay.
Rachel Barkow:
-6,500 who have federal-
Preet Bharara:
Outside of DC.
Rachel Barkow:
-possession cases outside of DC. And then there’s probably another few that come from the District of Columbia.
But this is a very small part of the people who are serving sentences for marijuana. And I do think one of the things he was aiming to do was remedy the kind of unjust outcome where you have states where marijuana sales are big money for people now. It’s legal in those states. We see people making money and profiting off it. And yet, we hear we have these people who have convictions for the very same activity.
And really all he did here was kind of give relief to buyers, but he hasn’t done anything to equalize the treatment of sellers. And so I would’ve liked to have seen the distribution of marijuana covered by this pardon, but it is a start. It’s something.
Preet Bharara:
So we were talking about the federal system, and whenever we talked about crime and punishment, we need to make sure that people appreciate that most criminal cases, most incarceration, is a result of state prosecutions. Obviously the president of the United States and our federalist system doesn’t have actual power to do anything about that.
But the second part of his statement here, he says this, “I’m calling on all governors to do the same for state marijuana possession offenses.” Do you think that will have any effect? And does that matter?
Rachel Barkow:
I think it’s always good for the president to use the bully pulpit to indicate issues that he cares about. And I do think the president can be a kind of trendsetter by going out in front of an issue that might give some political cover to a governor that was on the fence.
I mean, truth be told, governors actually took the lead on this ahead of him, because we did have state governors who had given pardons for people for marijuana offenses before Biden did. But this may lead some of the governors who hadn’t yet done that to decide this is a good political move. If Joe Biden made the political calculus that this is a good thing to do right before midterm elections, then the signal might be that this is a winning political issue and governors might decide to do it too.
I mean, I think the most important thing he did that day was neither [inaudible 00:07:39] he himself issued nor this statement to the governors, but his request to have marijuana considered something that should be declassified and rescheduled.
Preet Bharara:
Yeah. So I was going to get to that. You’re jumping ahead, Professor.
Rachel Barkow:
I’m sorry. But that was-
Preet Bharara:
That was third part of his statement and I knew you were going to get to it.
Rachel Barkow:
That was the best part.
Preet Bharara:
So I know you’ve been sort of unimpressed. So with the first part, the second part. So let me read for folks the third part that seems to make you a little bit happier.
Third, the federal government currently classifies marijuana as a schedule one substance, the same as heroin and LSD and more serious than Fentanyl. And he says, “It makes no sense.” And then he says, as you alluded to, “I’m asking the AG and the Secretary of HHS to initiate a process to review how marijuana is scheduled under federal law.” So I guess that’s what I was saying at the beginning. Is this the beginning of something much larger or not?
Rachel Barkow:
I mean, that would be big. That is… It’s hard to… That’s a big deal. I guess I’m trying to figure out the best way to say it.
It’s a big deal, if it gets completely removed as a scheduled drug, that would be monumental, that would be a very big shift. And even if it gets rescheduled, because as you said, right now, it’s in schedule one, which is considered the most dangerous category of drug, which is preposterous, right? It’s actually a little embarrassing.
Preet Bharara:
Can you explain that to folks a little bit about the schedules and what they mean and why it’s preposterous?
Rachel Barkow:
Yeah. So in the 1970s, 1970, I think itself, Richard Nixon signed into law this comprehensive drug legislation that set out that we should have… It’s the Controlled Substances Act and it was a process for classifying various illicit drugs and substances. And there’s five categories. So Schedules 1 through 5 with Schedule 1 being the drugs that we consider to be the most dangerous. These are the ones that should have no medical use and contain a high potential for abuse. So that’s like the worst. We think these are going to be abused and there’s no legitimate good medical use for them. And that’s where marijuana was scheduled initially and has stayed ever since, was as no medical use, most dangerous drug we’ve got. High potential.
Preet Bharara:
Right, alongside heroin, LSD, ecstasy, and some other things.
Rachel Barkow:
Right. So it’s ridiculous because we now have, over half the states, have authorized the use of marijuana for medicinal purposes. So we’ve now had years and years of using marijuana for valid medical reasons. People have found it to be very beneficial for pain management and other medical uses, but it’s still illegal under federal law. And so what this should hopefully do is finally catch federal law up with the reality that in fact, marijuana does have lots of beneficial uses.
It’s not a drug that has a high potential for abuse anywhere close to the drugs that it’s surrounded by here. And so the real question, I think… I’m pretty confident it’s going to leave Schedule 1, unless this process is really broken. I think any rational person looking at facts is going to move it out of Schedule 1. The bigger issue is going to be, does it kind of get removed entirely so that it’s just descheduled, it’s kind of outside of this whole regime entirely?
Preet Bharara:
Well, that’s a big step. It reminds me of this debate that has been going on for a long time where you have the discrepancy in the treatment of powder cocaine and crack cocaine. And I think a lot of people, and you might be one of these people would say, not unreasonably, that they should be treated the same and the weight differential shouldn’t be as great as it was for a very, very long time.
And finally, there was a bipartisan approach to decreasing the differential but not making them equal. Are there any lessons from that here as to whether or not you’ll just move it to another schedule or deschedule it all together?
Rachel Barkow:
I mean, it’s a little different in the sense that the question of crack powder was entirely political, that had to take place in Congress. So it’s the Democrats and Republicans negotiating with each other, trying to figure out what both sides could live with.
This classification decision is different than that, right? This is something that he’s asked his Attorney General and the head of HHS to do. So it’s supposed to be a more objective, more fact-based process than a political one. But having said that, I’m sure politics is part of this, and I’m sure those folks will think about that. So if I had to take a guess, I think it probably stays scheduled, but maybe it’s… Just to give you an example like in Schedule 3, just to take the midpoint of drugs that are scheduled.
Preet Bharara:
Is Diet Coke in schedule three? That’s got to be.
Rachel Barkow:
No Tylenol with codeine is though.
Preet Bharara:
Tylenol with codeine is in Schedule 3?
Rachel Barkow:
Yeah. And Schedule 5 has Robitussin Ac.
Preet Bharara:
If you put marijuana in with Robitussin, that wouldn’t be… Would that be bad in your point of view?
Rachel Barkow:
Well, I guess my point there is that if given that those things are scheduled, you can imagine the argument that says, “Well, let’s not completely remove marijuana.”
And by the way, even if the federal government did that, even if the federal government decided, “You know what, this is just a completely legal substance like oregano and it’s not part of our drug classification at all.” You could still have individual states deciding they wanted to continue to ban it. So it wouldn’t necessarily mean that it would be legal everywhere. Because right now the states vary, right? We have some states that have decided to allow the sale of marijuana and others have not. And if the federal government got out of the business entirely, it would be a state by state kind of a question. What you have right now is this really weird set up where it is illegal under federal law, and yet somehow states have kind of ignored that and they’ve authorized it being sold.
But you could still, in a state that has decided they don’t want to criminalize it as a state matter. And you know, can go, and you can buy marijuana in these states. There’s stores. I’m sure people who live in these parts of the country, we’ve all seen them. You can go in there, you can buy it. But if the federal government tomorrow decided they didn’t like that anymore, they could have a big raid on that store and they could arrest everybody involved. They’ve just chosen to look the other way.
So I think this is another chance for the federal government to kind of figure out a more sensible relationship with what we’ve seen happening in the states.
Preet Bharara:
Technical legal question, because it’s something not clear to folks, if you wanted to change the scheduling of marijuana, can that be done by executive order by the executive agency? Or does it need some involvement of Congress at all?
Rachel Barkow:
I think it was delegated that this is something that can be done by the executive. I think Congress left it in the Attorney General’s authority, but Congress would always have the ability to overrule anything that they did.
Preet Bharara:
You have a sense of where Congress is after the evolution of thinking on marijuana at this moment?
Rachel Barkow:
Well, I have been saying for a while that I think this is a winning political issue to rethink marijuana. I think that, particularly with young voters… I mean, society’s just come a long way from 1970 in terms of how they view this drug. And so I think that there’s a lot of political support on both sides, the kind of more libertarian Republicans and Democrats for really treating marijuana differently.
Having said that, there was already criticism of the Biden order right after it happened by Tom Cotton, for example. So you’re definitely going to have some Republicans who are going to fight this and still talk about marijuana without any evidence as gateway drug, really serious, this is part of Armageddon, or whatever, anarchy. The decline of American civilization.
So I think you’ll still have some that won’t want this, but I think the majority will. And I think they’ll decide this is actually an issue that, for their own political careers, they’re better off on the side of relaxing the restrictions on marijuana.
Preet Bharara:
Here’s a parochial question and then I’ll let you go. And this is an issue maybe doesn’t occur to people, and I wonder how Biden thinks about this. For a long time, and I think it’s still the case, that if you wanted to be an assistant US attorney, a federal prosecutor, someone who works at the Justice Department, a voluntary disclosure of prior marijuana use was disqualifying. Should that be true?
Rachel Barkow:
I don’t think it should be, but it still is the case and nothing about this pardon did anything to change that. And I definitely saw some people making comments on social media about the fact that-
Preet Bharara:
There’s a disconnect. I think it’s very confusing. You have the federal system causes confusion all the time, but this is one, I think you’re exactly right, one that not only is confusing in part because of its evolution over time between the federal folks and the state folks, but also the sort of overlap of political will on the conservative side and the liberal side. Not all, isn’t John Boehner, in part, making a living on supporting legalization of marijuana?
Rachel Barkow:
That is right. He’s one of the leading lobbyists for those folks, and it’s a really lucrative business. But it’s a weird one because since it is still illegal under federal law on the books, they have a really hard time doing things like banking and engaging in financial transactions because they are selling something that is a unlawful to sell under federal law. And there’s big money to be made.
And that that’s the perversity of the regime is that we have predominantly black and brown people, white people too, but disproportionately people of color, who have served really long prison sentences and are still serving them for selling marijuana. At the same time, you have people making millions off of it now in states and the federal government doing nothing about it. And that’s why I’m a little disappointed in this pardon order, because I think it really doesn’t tackle that really grotesque disparity in treatment. And I think if you wanted real equality and justice in these cases, you would just make sure that no one is currently serving time for selling the same product that other people are selling and making millions off of it just. There’s really no justification for that disparity.
Preet Bharara:
Well, maybe. Maybe that’s next final question. How much do you smoke a day?
Rachel Barkow:
Yeah, see I don’t. I’m just sympathetic to the argument.
Preet Bharara:
Okay.
Rachel Barkow:
But I’m a-
Preet Bharara:
You could’ve taken the podcast Fifth Amendment, which you could’ve taken.
Rachel Barkow:
If chocolate were the question we were talking about then I would find myself outraged.
Preet Bharara:
I didn’t ask you about edibles. My kids recently were shocked and mortified that I even knew what edibles were.
Like how do you know that? I’m like, I read.
Professor Rachel Barkow. Thank you so much for joining us.
Rachel Barkow:
Oh, thank you.
Preet Bharara:
For more analysis of legal and political issues making the headlines, become a member of the Cafe Insider. Members get access to exclusive content, including the weekly podcast I co-host with former US attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.
If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me @PreetBharara with the #AskPreet. Or you can call and leave me a message at 6-6-9-2-4-7-7-3-3-8. That’s 6-6-9-2-4 Preet. Or you can send an email to letters@cafe.com.
Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producer is Adam Waller. The editorial producers are Sam Ozer-Staton and Noa Azulai. The audio producer is Nat Wiener. And the Cafe team is Matthew Billy, David Kurlander, Jake Kaplan, Namita Shaw, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.
