We said we’d post about Biden’s marijuana pardon early last month, and here it is, folks. Let’s be clear: this is a huge deal. A pardon allows for those who have had prior federal marijuana possession convictions to apply for jobs, housing, and schooling. With over 400,000 people in prison and in jails for drug related charges, you’re probably thinking–ok, this is good news for them. That’s where you’d be wrong. Biden’s pardon only covers those in federal prison for solely simple possession–which equates to exactly zero people released from jails and prisons from the pardon as it currently stands. There are, however, 2,800 people currently in federal prison due to marijuana related convictions who will be left out of Biden’s pardon.  

While this pardon is a step in the right direction, Biden has the power to go even further–and he should. Currently, the United States holds the largest population of prisoners in the world: per capita, the U.S. incarcerates at a rate of nearly 6 people per 100 for a total estimate of almost two million people across state and federal prisons, local jails, juvenile corrections systems, immigration detention centers, tribal jails, military prisons, state psychiatric facilities, civil commitment centers, and prisons in U.S. territories. This rate has increased by 500% over the past forty years. Simply put, the United States has an incarceration epidemic, one that is rooted in decades of harmful policy and policing and is in desperate need of attention.

Let’s take a look at how we got here.

In 1971, President Nixon declared drug abuse “public enemy number one” and officially entered the United States into the infamous era of the War on Drugs. This so-called war saw the implementation of countless “tough-on-crime” policies, like mandatory minimum sentencing, increased policing in urban communities (aka communities of color), and a crackdown on the illicit drug trade. This wasn’t just a conservative effort, though. The disastrous 1994 Crime Bill, the Violent Crime Control and Law Enforcement Act, authored by none other than President Biden himself, wreaked havoc on the criminal justice system and has further perpetuated incarceration on a massive, nationwide level. It also saw to bolster the police force–calling for an additional 100,000 police officers to be hired. Democratic President Bill Clinton signed it into law, hailing it as a victory against violent crime at a time when the focus for drug abuse shifted from rehabilitation to retribution. It’s been 28 years since the passage of the bill, and many advocates for those incarcerated argue it incentivised the prison industrial complex, leading to the creation of more jails and prisons after a whopping $9.7 billion dollars were allocated for such buildings. 

Even more disgusting, the for-profit prison model was born directly from the “tough-on-crime” policies of the 1980’s and ‘90s. With a rapidly growing prison population, public prison systems became overburdened. Over-incarceration incentivized the creation of for-profit, private prisons that hold 8% of the incarcerated population of the United States–99,754 people. Our country created an environment where a handful of wealthy investors stand to profit from locking people up. Twenty-six states currently use for-profit prisons in varying degrees, with Montana sticking out like a sore thumb–half of their prison population is in for-profit, private prisons. 

The War on Drugs would go on to exacerbate another problem we are all familiar with: mass incarceration. Mass incarceration, as defined by the Institute to End Mass Incarceration, is the disproportionate use of the carceral system in the United States. We have more people incarcerated within our borders than any other country in the history of the world. Between 2009 and 2019, 1.3 million people were arrested for simple marijuana possession alone. Mass incarceration disproportionately affects Black and Brown people at jaw-dropping rates, and it was done so intentionally–Nixon’s domestic policy advisor John Erlichman admitted in a 1994 interview that the War on Drugs was started to target and criminalize Black people and anti-war activists. Let’s be real for a minute: prior to the War on Drugs, direct discrimination in the form of Jim Crow Laws, segregation, and more, led to the subjugation of Black people in this country. Now, mass incarceration has taken place of those laws under the guise of protecting the public. 

Alright, we’ve thrown a lot of stats at you–so let’s talk about how this impacts Massachusetts specifically. You know by now that the United States has the highest rate of incarceration in the known world–and within our borders, Massachusetts sits at the lower end of incarceration rates compared to other states. However, if Massachusetts was a country of its own we’d still have a higher rate of incarceration than other industrialized countries like the UK, Portugal, France, and Belgium. What’s worse is that Black people, though only comprising about seven percent of the Massachusetts population, make up twenty six percent of our prison population. 

Although Massachusetts has seen its rate of incarceration drop by 40 percent in the last decade, it is still representative of the incarceration epidemic writ large. We can do our part as members of the Commonwealth to continue this downward trend by advocating for policies that reverse the effects of the War on Drugs. For instance, Republican Governor Baker last-minute vetoed Bill S.2030 — known as the Prison Moratorium bill — which passed the House and the Senate. Bill S.2030 would have established a five year moratorium on the building of new prisons–including a new women’s prison that the Baker administration has indicated they wish to pursue. The bill was filed in hopes of slowing the rate of incarceration across the Commonwealth and building community-focused alternatives to modern day policing. There is now a call for Representatives to hold a special session in order to override the veto and put the moratorium into law. 

Additionally, Massachusetts could follow in the footsteps of the State of Oregon, which passed a bill in 2020 that legalized possession of small amounts of all drugs for personal use. A similar bill, H.2119, was introduced in the Massachusetts house but has since been “sent to study,” the House’s favorite way to kill a bill. This bill would go far to address the issue of substance addiction and simultaneously address intersecting issues facing the Commonwealth, like addiction and houselessness–another issue exacerbated by the carceral state–which we covered briefly in our latest Saturday Scoop. 

In his remarks on his pardon, President Biden urged State Governors to do the same on a statewide level. In response, Governor Baker said Massachusetts residents who wish to have their records cleared can do so via expungement in accordance with current Massachusetts law. The law Baker is referring to is one he signed in 2018, which ultimately created a lot of barriers for individuals who pursued expungement and placed the burden of relief on the individual. Expungement is an application process whereas a blanket pardon by a Governor would automatically be applied to those with prior convictions, relieving the burdens that come with an expungement process. There is good news though: this past session saw an amendment to the bill that would expand what charges could be expunged, in addition to removing the ability for judges to use their discretion to deny someone’s expungement. The new amendments take effect November 9th, and we are hopeful that this will lead to increased accessibility to expungement. In addition, the Democratic gubernatorial candidate Maura Healey stated shortly after Biden’s announcement that she would follow his lead and grant pardons statewide. Let’s all do our part to hold her accountable to her promise if she were to win. 

Blog post by Margie Banker, Act on Mass intern fall 2022