Biden and Simple Possession of Marijuana

President Biden has made his pitch for the pot-smoking vote this week by announcing that he is issuing pardons for anybody who has been convicted on the federal level for simple possession of marijuana. This raises a lot of interesting points.

As a retired DEA agent, I did have occasions to work marijuana cases. Actually, most all of those cases were when I was a US Customs agent prior to joining the newly-created DEA in July 1973. With Customs, I was assigned to a group exclusively investigating the smuggling of large, commercial quantities of marijuana by aircraft, something that was quite prevalent at the time in the Southwest area bordering Mexico.

As my career continued in DEA from 1973-1995 when I retired, marijuana understandably became a lesser priority compared to heroin, cocaine, and later drugs like methamphetamine. The biggest priority now for DEA is fentanyl, of course.

At this point, I would like to introduce the federal drug law dealing with simple possession of controlled substances (drugs requiring a prescription or simply drugs that are illegal on their face, like heroin). The federal laws regarding drugs are under Title 21 of the US Code. These were the laws I enforced as a Customs and DEA agent. The statutes we were most concerned with and most often charged were smuggling, possession with intent to distribute, and conspiracy to do the same. There is a statute for simple possession. It is 21 USC 844.

It is important to note that no federal prosecutor would accept a case that involved someone arrested for simple possession of a personal quantity of drugs, especially marijuana. I cannot speak for every state and local jurisdiction, but at a federal level, we only cared about commercial quantities. That means that we didn't care about some guy smoking a joint in his home. But if his home contained 500 kilos of marijuana, that was not for his personal use. That was clearly what we called a commercial quantity. He was trafficking.

So now you might ask why is this 21 USC 844 on the books? In practice, it is used for plea bargaining purposes. Pleading to a lesser charge. It is especially handy when a defendant has cooperated with law enforcement to a great degree and deserves a big break. Let me give you an example. Let's say DEA arrests a guy transporting a load of cocaine in his vehicle, let's say 20 kilos. It turns out that he is just a "mule" who is being paid to carry the drugs from one place or one person to another person or place. The driver agrees to cooperate. He names the person who gave him the drugs and the name of the person he is supposed to deliver the drugs to. He also agrees to go through with the delivery to the intended recipient, which he does under the control of the agents. To make a long story short, everybody is arrested on both ends, and the driver testifies in court. In return, he is allowed to plead to a lesser offense (21 USC 844 in many cases).

That's what we are talking about. Nobody at the federal level is chasing pot smokers and throwing them in federal prison for having a personal supply of marijuana or any other drug. The US Attorney's office would never accept such a case. So this is no great act of mercy by President Biden. 

Biden also wants the government to review whether marijuana is properly classified as a Schedule One drug, like heroin. On its face, it seems ludicrous that marijuana and heroin would be in the same classification or schedule. The reasoning is-you can agree or disagree- that like heroin, marijuana is judged to have a high potential for abuse and has no medically recognized use. You can read the list of schedules under the Controlled Substance Act of 1970 here. Interestingly, cocaine and fentanyl are listed under Schedule Two because they do have certain legal medical uses.

The bottom line is that virtually all the beneficiaries of this pardon are people who actually committed more serious offenses, but were allowed to plead to the lesser charge of 21 USC 844-simple possession either because they cooperated with law enforcement and/or simply agreed to plead to the lesser charge.

You are not going to see Cheech and Chong walk out of federal prison where they have been serving time because DEA agents found them smoking marijuana on a street corner.