As President Joe Biden replaces President Trump, advocates are balancing hope with more realistic expectations about how much progress the new administration is willing to make over the next four years.
For decades, Biden’s record on drug policy and harm reduction has been fraught. His current platform indicates that while he’s been at times responsive to public pressure to update his stances, he remains largely rooted in regressive policies that stop far short of meaningful reform.
In a letter to Biden’s transition team last week, 212 harm reduction and health care organizations across the country called on his administration to take strong action on the drug war and the overdose crisis in its first 100 days. Whether he will be responsive remains to be seen.
Here are the measures Biden could take in key areas of drug policy reform—and what experts in the field believe will play out in reality.
It will be within Biden’s discretion to instruct the Department of Justice to withdraw from the litigation currently challenging the operation of safe consumption sites (SCS) in the United States.
“That’s something that the Trump administration was active on, right? Safehouse was a result of that,” said Maritza Perez, director of the Office of National Affairs at the Drug Policy Alliance*. “We want him to ask the DOJ to be hands-off when it comes to [SCS]. I think that’s going to be something we’re going to have to do some more education on, just given his background.”
Biden is the author of the “crack house” statute, which prohibits the opening of any site for the express use of a controlled substance and which props up the litigation against SCS. “So we have our work cut out for us there,” Perez said. “But that’s been our ask, that’s been actively communicated to the administration.”
“I think the criminal justice framework has definitely been challenged. I think COVID has done more to show that vulnerability. But how far are we going to go?”
Aside from calling off the DOJ’s current litigation, Biden could also ensure that no new lawsuits are filed and push for the “crack house” statute to be revised.
“He’s certainly not been a progressive, but we’re looking in comparison to Trump right now,” said Alex Bennett, director of the Opioid Overdose Prevention Program at New York University. “I think Biden is realizing the harms of criminalization, the way it’s devastating communities, and I think that the criminal justice framework has definitely been challenged. I think COVID has done more to show that vulnerability. But how far are we going to go? … I think he can turn the DOJ [aspect] off, he can come out and say, ‘This is a smart thing to do. This is the public health thing to do.’”
“One of the things he can do is, in some of these COVID [relief] packages … really think about money for harm reduction. And that’s including syringe exchange programs,” Bennett said. “The evidence is overwhelming. If we just be rational about things and embrace the science, that should mean, yes, more dollars for syringe exchanges.”
This will be within Biden’s purview as he creates his annual federal budget. As president, he has the means to include more direct funding to harm reduction agencies. And while the ban on federal funding for SSP was lifted a few years ago, a federal ban on the syringes themselves remains. That’s something Biden could act on—should he choose to.
“A lot of this is dependent on how far he wants to go on these issues and how much he’s learned,” Perez said. “He was very proudly ‘tough on crime.’ I don’t know, maybe this will be a different Biden—one that’s more with the times, more educated. I think a lot of that remains to be seen.”
We know Biden’s public stance on this. He’s spoken about decriminalization, about medical legalization, about moving marijuana from its current classification as a Schedule I drug under the Controlled Substances Act (using executive action to bring it down to Schedule II) and about expunging past convictions for marijuana charges. But he’s never come out in favor of full descheduling and full legalization.
“I think this is one issue where hopefully we can change his mind,” Perez said. “For one thing, it’s just something he’s going to have to address. Every year we see more marijuana bills in Congress and we see more states legalizing. It’s not something that the president can ignore at this point. He’s going to have to make a decision about it.”
One potential advantage is that Vice President Kamala Harris, problematic though her past record on marijuana might be, is now the sponsor of the MORE Act—which the House passed in December 2020 and which would see social and criminal justice provisions enacted for communities devastated by the racist enforcement of marijuana prohibition.
The DOJ also has the power to reinstate the Cole Memorandum—an Obama-era DOJ memo that advised federal prosecutors to stay out state legalization proceedings, done away with by Jeff Sessions in early 2018. The DOJ could also go further than that and work with the Department of Health and Human Services and the Drug Enforcement Administration to remove marijuana from the federal list of controlled substances.
“People are looking to Oregon and seeing the possibilities.”
“I think my preference would be that we do things through Congress,” Perez said. “Because we’re not just talking about the need to change the status of marijuana at the federal level. We also need to talk about the harm that’s has been done to communities, that communities are still suffering. I feel like the way to really comprehensively do that is just through legislation.”
Bennett agrees that we’re looking at a likely rescheduling, and a more serious consideration of regulation as a model. “The states are seeing the benefits of that. And I think people are looking to Oregon, too, and seeing what are the possibilities,” he said. “I do think a lot’s going to happen with marijuana.”
It’s not unlikely that widespread drug decriminalization will follow a path similar to the one marijuana policy has take over the past decade: slow, hard-fought organizing finally entering the cultural mainstream, one state breaking the seal of reform, and then legislation cascading through surrounding states like dominoes. This is part of why Oregon’s 2020 decrim victory is so exciting. There’s opportunity to move Biden on this, even if we don’t see federal decriminalization during his term.
“At the federal level, we are going to be working on a drug decrim bill because we think it’s important to start that work now,” Perez said. “Realistically, that’s probably not going to go anywhere for a number of years—but marijuana, that was years of work, but then when that push did happen, it moved quickly. So we start now. Now’s the time when we start to educate the public and lawmakers, and then hopefully within a few years we’ll see a bill similar to the MORE Act that decriminalizes all drugs.”
It seems likely that we will see some sort of sentencing reform in this administration. Biden has previously spoken about the importance of ending mandatory minimum sentencing and including ending incarceration for drug charges alone. He has also, however, suggested drug courts and forced treatment programs as an alternative—so-called solutions that are not suitable for all drug users, do not provide equitable care and are ultimately still carceral in nature.
“I do think we’ll see a big sentencing reform, or maybe he’ll use his executive powers to do something around that, we’ll have our work cut out for us when it comes to drug courts and treatment,” Perez said. “Because the way he’s been talking about it has been really problematic.”
Columbia professor Dr. Carl Hart added that there will be no real, meaningful criminal justice reform until we strengthen our economy. “Since we don’t have more respectably paying jobs, we have increased the number of jobs for cops,” he told Filter. “When you have more cops, you’re going to arrest people, and the people you hire are primarily white cops who arrest primarily Black and Brown bodies. So you’re not going to have criminal justice reform until you have economic opportunities.”
“I think in the next few years we’ll see more reform, increasing accountability,” Bennett said. “Abolition, I don’t think we’re going to necessarily see that.”
Police accountability and reform is almost an impossible sell to lawmakers in any administration; rarely is there any political will at the federal level to enact change. However, carried on the momentum of this past summer’s remarkable uprisings against systemic police brutality, there’s a chance that the Justice in Policing Act that was passed in the House last year will be rebooted under the new administration.
Biden’s administration has the power, and perhaps the inclination, said Perez, to reform or defund the “1033” program that funnels excess military equipment into police departments.
“I also understand the administration wants to reinstate the commission around policing, which as advocates we’re not happy about,” Perez said. “We’ve had so many studies, so many commissions. We have all the data. Now we need the action.”
* DPA previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug War Journalism Diversity Fellowship.