Since the President’s surprising pardon announcement last month, the case for cannabis resentencing is stronger than ever
On October 6, President Biden made an unprecedented announcement about how his administration will address cannabis policy moving forward. His announcement had three parts: 1) pardoning citizens with federal marijuana possession convictions; 2) calling on governors to take similar action at the state level; and 3) calling on the Secretary of Health and Human Services and the Attorney General to review marijuana’s federal Schedule 1 status. The intent of these efforts are clear: The war on cannabis failed. It was wrong. And governments must act to begin to redress those wrongs.
The intent of the President’s action was to begin what will be a long process to provide retroactive relief for those criminalized for cannabis across the country. Governors interested in heeding the President’s call can issue similar executive pardons and use their authority to encourage legislation that provides automatic record clearance for individuals suffering the collateral consequences associated with having a cannabis record and sentence reviews for individuals still incarcerated for cannabis offenses. And state legislatures can take up said legislation and act on it swiftly.
The Virginia General Assembly had begun this process prior to the President’s announcement, but there is still work to do. In 2021, legislation was passed to provide automatic sealing for certain low-level marijuana records. Implementation of that is underway. But legislation to provide sentence reviews to Virginia prisoners serving time for cannabis-related convictions was not adopted in 2021 or 2022.
The War on Drugs marked an era of harsh cannabis criminalization, with the arrest and incarceration of millions of people for marijuana offenses, disproportionately people from marginalized communities. The position toward cannabis has dramatically shifted over the past decade, including in the Commonwealth. Yet, over a year after legalization was enacted here, it has failed to benefit many of the individuals most impacted by prohibition policies. Legalization does not operate retroactively, so while it may
halt the harms of continuing prohibition, it does not
repair
the harms from decades of criminalization.
To legalize with integrity, Virginia must offer sentence reviews to individuals still serving time for cannabis-related offenses. Cannabis resentencing is essential to the mission of the justice system. Incarceration places a cost upon both the state and its citizens--a significant human and financial burden. Justifying such costs requires showing the public safety benefit of taking the freedom of certain individuals. Who benefits from people staying in prison for something the government no longer considers criminal? Is the human and financial cost of keeping mothers and fathers incarcerated who pose no threat to society worth it?
From a moral perspective, continued incarceration for cannabis offenses is unjustifiable. Since cannabis was first criminalized, its enforcement was riddled with racist intent. Virginia has worked to reckon with the complicated history of its drug laws, reconsidering policies and ultimately repealing prohibition. But this progress falls short: while state leaders are contemplating the structure of a highly profitable new industry, at least several hundred Virginians are left behind bars for the very same behavior.
And from a practical perspective, continued incarceration for cannabis offenses is unjustifiable. When a state chooses to punish a specific behavior, it signifies that the cost of incarcerating someone who engages in it is worth the benefit of separating them from society. If a state chooses
not to punish a behavior, it signifies that the cost of incarcerating someone is
not worth the benefit of separating them from society. Virginia’s choice to legalize recognizes that incarceration for cannabis-related offenses is a waste of taxpayer dollars--and yet, we continue to do it.
Criminal laws and sentences reflect the time at present, and we need a justice system that mirrors this. Our treatment of cannabis has entered a new era, but Virginia’s criminal code remains stuck in an old one. The path forward is clear: to achieve the standard for morally and practically sound drug policy, Virginia must adopt cannabis resentencing--or risk all the progress we have made.
Thanks to our friends at
Recidiviz, we developed this
policy impact memo to better understand the scope of resentencing in Virginia.
