It’s a rare occurrence in American political history, but it does happen.

american marijuana jail arrestIn 1868, just three years after the end of the U.S. Civil War, President Andrew Johnson granted a sweeping pardon to the Confederate soldiers and officers who had committed treason against the Union. One hundred and nine years later, President Jimmy Carter repeated the gesture, pardoning more than 100,000 men who had fled the country or gone into hiding to avoid the draft during the Vietnam War.

These mass amnesties have been exclusive to the wake of war and widespread social conflict. And while the presidents who grant them may believe the “criminals” that should be forgiven, amnesty is more an act of necessity than conscience: Vietnam and the Civil War nearly tore the country apart, and the healing required a grand act of magnanimity.

Will marijuana convicts be pardoned?

Now civil liberties proponents are calling for another grant of mass amnesty, this time to civilians: people convicted of marijuana crimes. Lawmakers have already begun the early stages of debate over whether cannabis offenders should be freed from jail, pardoned, and returned their legal rights.

Amnesty will likely come only when the government has legalized recreational weed. At that point, our jails and prisons will be full of young men, mostly African American, convicted of a crime that is no longer a crime. That kind of unfairness may simply be intolerable to Americans and their leaders.

The move would have to come from the top, and that creates countless problems for advocates. Only President Barack Obama has the power to pardon federal convicts, and only the nation’s governors have the power to pardon state convicts. Even if Obama were to declare mass amnesty, it would only apply to inmates and ex-cons convicted of federal crimes.

That means activists would need to convince 50 other executives to free thousands of prisoners and wipe clean their criminal records. Even if many states do so, others may leave their non-violent drug offenders rotting in jail.

Some drug offenders being pardoned

At the federal level, Obama is already working to pardon certain drug offenders, especially those serving sentences that would have been shorter if handed down under current law. But this process only works one inmate at a time.

A more comprehensive solution to the problem may require another act of mass pardon. That would be within the president’s legal authority, since executive pardons are absolute and cannot be challenged by Congress or the courts. It would also be very, very rare.

marijuanaLaws seldom change so rapidly or dramatically that they create an entire class of convicts punished for crimes that are no longer crimes. But the move to end marijuana prohibition has gained steam so rapidly over the last decade that it has spurred an even larger, bipartisan push to reform America’s racist system of mass incarceration.

If the situation continues to change at its current pace, mass amnesty may become a necessity yet again. But it’s unlikely to happen during the current administration. That’s in part because Obama has so little time left on the job, but also because the office that handles pardon applications was mismanaged for years by a partisan holdover from the Bush administration who used the office to benefit fellow white conservatives while ignoring legitimate cases.

But that just means the next president will have a remarkable opportunity to change the American legal landscape in one fell swoop. A mass pardon may not come this year or next, but it’s likely already on the horizon.


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