Biden also directed Secretary of Health and Human Services Xavier Becerra to look into how marijuana, currently classified as a schedule I drug along with heroin, LSD and ecstasy, is scheduled as a drug under federal law.
Patel said most simple possession of marijuana charges take place at the state level and mostly impact Black and Brown communities. A 2020 report by American Civil Liberties Union (ACLU) found that Black people are 3.64 times more likely than white people to be arrested for marijuana possession. According to the report, Georgia saw a 18.5% increase in marijuana possession arrests rates per 100k from 2010 to 2018.
According to data from national marijuana advocacy group NORML, there were about 6,000 arrests for possession of marijuana in Georgia in 2020, a decrease from 10,061 in 2019 and 25,469 in 2018.
According to Georgia law, possession of one ounce or less of marijuana is a misdemeanor punishable by up to 12 months imprisonment and/or a fine up to $1,000 or 12 months of community service. Possession of more than an ounce is a felony punishable with one to 10 years imprisonment.
According to Federal Bureau of Investigation data, nearly 500,000 people were arrested for marijuana related drug offenses in 2019, mostly at the state level. In a taped appearance on NBC’s “Late Night with Seth Meyers,” Vice President Kamala Harris encouraged governors to follow Biden’s lead and offer pardons for state convictions on marijuana possession charges.
“Nobody should have to go to jail for smoking weed, right?” Harris said.
Most states grant governors the authority to issue pardons but only after consulting with the states’ parole boards. Other states, like Georgia, give full pardon authority to parole and clemency boards, which are appointed by governors.
“The governor doesn’t have that authority. The ability to issue pardons rests solely with the State Board of Pardons and Parole,” said Lynsey Barron, a criminal defense attorney and visiting assistant law professor at Emory University.
The Georgia Board of Pardons and Parole said in a statement that people convicted of both misdemeanors and felonies can apply for pardons. A pardon does not expunge a criminal record and the board does not have expungement authority. In Fiscal Year 2021, the board granted 530 pardons.
“Those who meet the Board’s criteria and have been a law abiding citizen may be granted a pardon,” the statement said.
Some district attorneys and municipalities, including Atlanta, Fulton County, Stonecrest and Savannah, have elected not to prosecuted low level drug offenses, such as possession of less than an ounce. Georgia gubernatorial candidate Stacey Abrams applauded Biden’s proposal and said she would follow his lead if elected.
Patel said states that decriminalize marijuana tend to see a decrease in the number of arrests and racial profiling.
“(Simple possession marijuana convictions) can create post-conviction poverty for individuals because it blocks them from job opportunities, professional licenses, occupational licenses, loans and even job applications where they have to check a box,” she said.
A 2021 poll by Gallup found that more than two in three Americans support legalizing marijuana, a number that has been increasing constantly since 2015.
With about 20 states fully legalizing marijuana, Patel sees support on both political sides for full federal legalization. Barron, the defense attorney, doesn’t expect it to happen anytime soon.
“I don’t know that they are going to decriminalize (marijuana) altogether, in my lifetime,” she said.