In a 2011 Reason cover story, I explained why drug policy reformers had been bitterly disappointed by President Obama’s performance during his first few years in office. With the notable exception of his support for shorter crack sentences, which Congress approved almost unanimously in 2010, Obama had done very little to de-escalate the war on drugs, despite comments prior to his election that led people to believe his administration would be less repressive than his predecessor’s.
To the contrary, the feds cracked down on medical marijuana more aggressively under Obama than they had under George W. Bush, even though he and his attorney general, Eric Holder, repeatedly promised the opposite. The administration continued to defend marijuana’s status as a Schedule I drug, a category supposedly reserved for substances with a high potential for abuse that have no accepted medical applications and cannot be used safely, even under a doctor’s supervision. When the subject of marijuana legalization came up, Obama literally laughed at the idea. Finally empowered to release drug offenders serving sentences that he had said were too long, Obama issued only one commutation during his first term and was on track to leave behind the stingiest clemency record of any modern president.
Some critics of the war on drugs—a crusade that Obama had declared “an utter failure” in 2004—predicted that he would improve in his second term. Safely re-elected, he would not have to worry that looking soft on drugs would cost him votes, and he would finally act on his avowed belief that the war on drugs is unjust and ineffective. As Obama embarks on the third year of his second term, it looks like the optimists were partially right, although much hinges on what he does during the next two years. Here are some of the ways in which Obama has begun to deliver on his promises of a more rational, less punitive approach to psychoactive substances:
Marijuana Legalization. Although the federal government cannot stop states from legalizing marijuana, it can make trouble for the ones that do by targeting state-licensed growers and retailers. Under a policy announced in August 2013, the Justice Department has declined to do so, reserving its resources for cannabis operations that violate state law or implicate “federal law enforcement priorities.” The department also has refrained from challenging state marijuana regulations in court, a strategy that could have delayed the opening of cannabusinesses in Colorado and Washington even if it was ultimately unsuccessful. In a New Yorker interview last January, Obama said “it's important for [legalization] to go forward” in those states. Speaking to reporters at the U.N. last October, William Brownfield, the assistant secretary of state for international narcotics and law enforcement affairs, said international anti-drug treaties should be interpreted to allow such experiments.
Unlike earlier promises of forbearance regarding medical marijuana, the respect for state policy choices signaled in that 2013 memo has visibly restrained the actions of U.S. attorneys and the Drug Enforcement Administration. “They’ve reversed course on marijuana after, I guess, previously reversing course on marijuana,” says Bill Piper, director of national affairs at the Drug Policy Alliance. “They’ve reverted back to their original position, before they launched the biggest crackdown on medical marijuana ever. They had to have put their foot down, because there’s been such a substantive change with respect to the raids. I think the politics shifted even further, to the point where some of the U.S. attorneys may have just given up.”
Federal Marijuana Ban. After Obama observed, in his interview with The New Yorker, that marijuana is less dangerous than alcohol, CNN’s Jake Tapper asked him whether he was open to reclassifying marijuana. “What is and isn’t a Schedule I narcotic is a job for Congress,” Obama replied. “It’s not something by ourselves that we start changing. No, there are laws undergirding those determinations.”
That response was highly misleading and evasive, especially compared to Obama’s candor regarding the relative hazards of marijuana and alcohol. Contrary to the impression left by the president, the executive branch has the authority to reschedule marijuana without new legislation from Congress. In September, a few days before announcing that he planned to step down soon, Holder said whether marijuana belongs in the same category as heroin is “certainly a question that we need to ask ourselves.” Since the Controlled Substances Act empowers Holder to reclassify marijuana, it would have been nice if he had asked that question a little sooner. Still, Holder was willing to publicly question marijuana's Schedule I status, something no sitting attorney general had done before.
Sentencing Reform. Obama supports the Smarter Sentencing Act, which would make the 2010 crack penalty changes retroactive, cut the mandatory minimums for certain drug offenses in half, and loosen the criteria for the “safety valve” that allows some defendants to escape mandatory minimums. Beginning last year, Holder has repeatedly criticized our criminal justice system as excessively harsh. Under a new charging policy he established last year, hundreds of drug offenders could avoid mandatory minimums each year.
“The first term vs. the second term has been almost like night and day on criminal justice reform,” Piper says. “We see that especially with what Holder has done administratively. But they’ve also pushed much more strongly for sentencing reform than they have in the past.”
Clemency. After a pitiful performance in his first term, Obama has signaled a new openness to clemency petitions. Last April an unnamed “senior administration official” told Yahoo News the administration’s new clemency guidelines could result in “hundreds, perhaps thousands,” of commutations. Obama’s total so far, counting eight commutations announced a few weeks ago, is just 18, but he still has two years to go. He already has surpassed George H.W. Bush (who commuted three sentences in four years), George W. Bush (11 in eight years), and Ronald Reagan (13 in eight years). Obama still trails, among others, Bill Clinton (61 in eight years), Jimmy Carter (29 in four years), Gerald Ford (22 in 29 months), and that old softie, Richard Nixon (60 in 67 months).
A few months ago, Obama chose former ACLU attorney Vanita Gupta, a passionate critic of the war on drugs who emphasizes its disproportionate racial impact (a theme Obama and Holder also have taken up), to head the Justice Department’s Civil Rights Division. A year before her appointment, Gupta had criticized Holder’s moves on drug sentencing as an inadequate response to mass incarceration. The previous month, she had endorsed marijuana legalization. The next two years will show whether Gupta’s appointment is a sop to disappointed Obama supporters or a signal of bolder steps to come.
If Obama actually uses his clemency power to free thousands, or even hundreds, of drug war prisoners, that would be historically unprecedented, and it would go a long way toward making up for his initial reticence. He could help even more people by backing sentencing reform, which has attracted bipartisan support in Congress. And having announced that states should be free to experiment with marijuana legalization, he could declare the experiment a success. “I’m waiting for the president to come out and say his views are evolving on marijuana,” says Piper.
If none of those things happens, Obama’s most significant drug policy accomplishment may be letting states go their own way on marijuana legalization. Even if our next president is a Republican drug warrior, he will have a hard time reversing that decision, especially given the GOP’s lip service to federalism.
"The toothpaste is out of the tube, and I don’t think there’s any putting it back,” Piper says. “Even if the next president really wants to crack down, I don’t think they’re going to be able to. They might be able to create chaos, and some people will go to jail, but I don’t think there’s any stopping legalization at this point.”
