With more than half of all federal prisoners serving time on drug charges, the Obama administration says it's time to free more low-level drug offenders.
"This is where you can help," Deputy Attorney General James Cole told the New York State Bar Association last week, urging lawyers to assist prisoners in creating "well-prepared petitions" to apply for executive clemency.
But while the Justice Department promotes the plan, the Obama team is making it clear that it has no interest in changing the federal law that sends many nonviolent drug offenders to prison in the first place: the one that outlaws marijuana.
On Tuesday, the president's deputy drug czar, Michael Botticelli, told the House Subcommittee on Government Operations that while the administration wants to help more marijuana offenders get treatment, it won't move to legalize the drug. "This opposition is driven by medical science and research," he said.
For critics, it's another example of the confusion that's passing for marijuana policy these days in Washington. It's leading to rising pressure on Obama and his advisers to deliver a consistent message.
Legalization opponents say the president should listen to his drug and science experts, who warn that marijuana is highly addictive and a threat to the developing brains of teenagers.
Pro-pot backers want the president to cancel marijuana's classification as a Schedule 1 narcotic – the same category as heroin and LSD. They note that 20 states and the District of Columbia have approved the use of marijuana as medicine and that many studies have shown that marijuana is far less addictive and unhealthy than other drugs, including alcohol and tobacco.
"It is ludicrous, absurd, crazy to have marijuana at the same level as heroin," Democratic Rep. Steve Cohen of Tennessee told Botticelli. "Ask the late Philip Seymour Hoffman" - the actor who died of an apparent heroin overdose Sunday in New York - "if you could. Nobody dies from marijuana; people die from heroin."
Democrats and Republicans alike are getting impatient with the mixed messages.
Republican Rep. John Mica of Florida, the chairman of the subcommittee, complained that the president and his team are "going in different directions."
"Unfortunately, there's chaos as it relates to where we're going and what our policy is. . . . I call it a schizophrenic approach," said Mica, who'd called the hearing. He said Congress wanted answers because 50 federal agencies administered 76 programs aimed at drug abuse and prevention.
Many, including Obama, say minorities are much more likely to get locked up for violating marijuana laws because they're more likely to be poor. A study last year showed that blacks are nearly four times as likely as whites are to be arrested for marijuana.
Some say the racial disparity prompts questions of equal enforcement after the Justice Department said it wouldn't block Washington state and Colorado from allowing sales of marijuana for recreational use.
"One thing does concern me greatly: how in some states one can purchase marijuana, and the people in my state and in my district are getting arrested and serving sentences," said Democratic Rep. Elijah Cummings of Maryland. "And it just seems to me there's something not right about that." He said it created one standard for marijuana purchased "on the streets" and another if it was bought "in the suites."
While Cole didn't specifically mention releasing marijuana offenders in his speech, pot advocates hope they're included in the effort. Cole said the administration wanted to focus on "nonviolent low-level drug offenders" who weren't leaders of gangs or cartels but rather first-time offenders and people without extensive criminal histories.
Much like his top lieutenants, Obama has been offering ammunition to those on both sides of the debate.
In recent weeks, the president has argued that marijuana is no more dangerous than alcohol and that it's important for legalization experiments to proceed at the state level. But he's also said smoking the drug is "a bad habit and a vice" and has worried about the possibility of more abuse if it's legalized and big corporations start "peddling marijuana." He made his comments to The New Yorker magazine and CNN.
At the same time, top Drug Enforcement Administration officials have bemoaned the flying of a hemp flag over the U.S. Capitol one day last summer and said it would be reckless and irresponsible to legalize marijuana.
Last month, Attorney General Eric Holder said he wanted to figure out a way to allow pot stores in Washington state and Colorado to use federal banking services – a clear violation of federal law.
Critics wonder how all this fits in with the health warnings from Obama's drug czar and the National Institute on Drug Abuse, which blames a declining perception of risk for rising rates of pot usage among teens.
"It appears, unfortunately, that the president may in fact be a major contributor now to some of the declines that we see in the perception of risk and what we're going to see in the future," Mica said.
Democratic Rep. Earl Blumenauer of Oregon said Congress was to blame for creating the drug-classification schedule that grouped marijuana with heroin. He said pot prohibition had "failed spectacularly" and that the drug should be fully legalized.
"It is outrageous that 8 million people have been arrested in the last decade," he said.
The debate has divided Obama and his longtime liberal ally, former Democratic Rep. Patrick Kennedy of Rhode Island, one of the nation's top legalization opponents and the chairman of a group called Project SAM (Smart Approaches to Marijuana).
Kennedy, a recovering addict, said Obama needed to give clearer guidance on marijuana and that he took issue with the president comparing pot to alcohol. He said Obama had championed "rigorous science" in the past and needed to do so again, particularly in warning children about the risks linked to using marijuana.
"Today's marijuana is far more potent than the marijuana the president has acknowledged using during his teens and early adulthood," Kennedy said.
While Obama is taking heat from all sides, his backers want to see him get more aggressive and take a leading role in the fight.
There's little sign of that happening: While the president vowed last week in his State of the Union speech to use more executive orders to bypass lawmakers, he suggested later that it won't apply to pot policy.
In an interview with Jake Tapper that aired last Friday on CNN, Obama said deciding what constituted a Schedule 1 drug was "a job for Congress."
Tom Angell, the chairman of a pro-legalization group called Marijuana Majority, accused the president of "passing the buck to Congress" and not understanding his powers under the federal Controlled Substances Act.
"If the president truly believes what he says about marijuana, he has a moral imperative to make the law match up with his views and the views of the majority of the American people, without delay," Angell said.
At the hearing, Democratic Rep. Danny Davis of Illinois noted that Congress has effectively tied the hands of the drug czar's office, prohibiting it from using federal money even to study legalization.
For now, Ethan Nadelmann, the executive director of the pro-legalization Drug Policy Alliance in New York, said Obama deserved credit for advancing the fast-moving debate and giving legalization backers "the wind in the sails" to keep the momentum going.
"What's exceptional about Obama calling the Colorado and Washington votes 'important' is that he effectively stepped out on this issue before virtually any governor or senator had done so," Nadelmann said.
At Tuesday's hearing, however, Botticelli described legalization as a "silver bullet solution," one the administration intends to avoid.
"The administration continues to oppose attempts to legalize marijuana and other drugs," Botticelli said, but he promised that the Obama team will conduct "an ongoing study of the drug and its consequences."
By Rob Hotakainen
McClatchy Washington Bureau