Two appointees to a criminal justice task force established by presumptive Democratic presidential nominee Joe Biden and his former rival for the nomination, Sen. Bernie Sanders, indicated recently that the criminalization of marijuana must come to an end.

Eric Holder, former Attorney General under the Obama administration, highlighted persistent racial disparities in drug law enforcement in an interview with C-SPAN and said the issue must be treated as a matter of public health instead of criminal justice.

“African Americans and whites use marijuana at roughly the same levels, yet you’re four times more likely to go to jail using marijuana if you are a person of color, if you’re black as opposed to if you’re white,” Holder said.

He also pointed to discrepancies in how some drugs, such as opioids, are viewed as a public health problem while others, such as crack cocaine, are treated as a criminal justice matter as the consequence of racial biases.

“Think about the crack epidemic and how we dealt with it there. We made it a criminal justice problem, we prosecuted people, we put people in jail,” he said. “Now we’re dealing with the opioid situation and now we’ve declared it—and I think correctly so and I’m not saying this is wrong—but we declared it a public health problem. Two different bodies of people—people perceived as being involved in crack, the use of crack and the use of opioids. It’s a racial component there.”

Without calling outright for “legalization,” or even “decriminalization,” Holder went on to say that taking determinations on problematic drug use out of the criminal justice system would help to avoid the racial discrepancies and disparities seen in drug law enforcement.

“I’d like to be able to take out of the system those kinds of determinations and to put law enforcement in places that are needed. But we tend to, again, because of implicit biases, deploy law enforcement to a much greater degree in African American communities and communities of color, which results in disparity when it comes to arrest rates,” Holder said.

As a senator, Joe Biden was one of the architects behind the federal response to the “crack epidemic,” as described by Holder. Biden helped craft the 1994 Criminal Justice bill which further criminalized drug users and contributed significantly to the mass incarceration of black people in particular. Sanders, on the other hand, has been a long-time advocate for cannabis legalization.

In recent years, Biden has at least softened on the issue of cannabis, but he is still an outlier in a Democratic party whose other candidates for the presidential nomination and its voters are broadly in favor of full marijuana legalization. Biden instead supports decriminalizing marijuana possession, expunging low-level cannabis criminal records, and federally rescheduling the plant to allow for more scientific research.

Meanwhile, a second member of the Biden-Sanders criminal justice task force, former federal prosecutor Chiraag Bains said in an interview with NPR that he welcomed Biden’s move away from his previous hardline stance on marijuana but that decriminalization is not enough.

“Decriminalization typically means that you don’t have a criminal penalty, but you could still be issued a civil fine. And then there are other kinds of consequences that could follow from that,” he said. “It’s still illegal conduct. If possession of marijuana is just decriminalized and that is the hook for extensive police involvement in people’s lives, and if you haven’t addressed the underlying systemic problems in policing and the justice system overall, then people could continue to be stopped and searched and frisked and so forth.”

The Biden-Sanders criminal justice task force has yet to formally adopt a position on marijuana legalization, and it’s not a given that Biden would automatically take on the task force’s recommendations in any case. So far throughout his presidential run, Biden has largely sought to contrast himself with President Trump as the stable, trustworthy candidate under whom “nothing will fundamentally change.”This message is unlikely to inspire the millions of Americans reeling from skyrocketing unemployment and racial tensions sparked by the coronavirus outbreak and the police killing of George Floyd. Marijuana legalization is of course no panacea to these ills, but it does create jobs, generate new tax revenues and reduce racial disparities in policing. Biden would do well to hold his nose, move on from his past punitive actions against drug users and listen to his criminal justice task force advisors.

state marijuana laws