BIDEN announces pardon of marijuana possession – We Answer your Burning Questions

Biden Announces Pardon of Marijuana Convictions

Spirits are high at the white house and many other houses as President Biden announces a federal pardon of those convicted of “simple use and possession” of marijuana. This signals the beginning of significant federal efforts to reform the Federal Government’s stance on marijuana and rolls up prior marijuana enforcement efforts that have gone up in smoke since the Obama administration.

On October 6, 2022, President Biden issued a statement on marijuana reform and announced three-steps he is taking change the Federal Government’s stance on marijuana and prior convictions for “use and possession”.

First, he is announcing a pardon of all prior FEDERAL offenses of simple possession of marijuana. This only relates to federal offenses and does not have any impact on state convictions for possession and use. This is likely an effort to put pressure on red state governors who may elect to not pardon state marijuana convictions prior to next year’s elections. We know this because of item two on Biden’s list.

Second, he is urging all Governors to do the same with state offenses.

Third, he is asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review how marijuana is scheduled under federal law.

What is a Pardon?

The President and the Governors of each state have the ability to pardon those convicted of criminal offenses. The President of the United States only has the ability to pardon those convicted of federal offenses. In this case, he will pardon those convicted of simple use and possession under the Controlled Substances Act – 21 U.S.C. 844.

A pardon is an expression of the President’s forgiveness because the person has been rehabilitated. A pardon is ordinarily granted after the defendant accepts responsibility for the offense and establishes that they have good conduct for a significant period of time after they have completed their sentence. This is a general rule, and there are exceptions. Many Presidents have pardoned people for purely political reasons such as the pardon of Roger Stone and Paul Manafort by President Trump.

A defendant must file an application for pardon which then goes to a committee established by the President to evaluate the request.

A pardon does not signify innocence but it does remove all civil disabilities related to the offense. It removes restrictions on the right to vote, hold state or local office or sit on a jury. A pardon would make it easier to obtain a license with a state agency such as a health professional license.

How Many People Will This Impact?

Federal prosecutors don’t often charge people with simple use and possession of marijuana. They leaf that up to the states (I can’t help myself). In 2016 the United States Sentencing Commission conducted a study of “simple possession” charges in the federal system. “Simple drug possession” is a misdemeanor under federal law that provides that an offender may be sentence to a term of imprisonment of one year and be fined $1,000. For a second offense, the person can be convicted of a felony.

For the fiscal year 2013 the U.S. Sentencing Commission identified 2,169 offenders who were charged with simple possession of marijuana. This was a record high (I’m so sorry), and was up from 1,238 the previous year.

If this executive order pardons everyone convicted of “simple possession” it will likely benefit tens of thousands of citizens. However, the bigger benefit will be pardons at the state level which will certainly impact millions of people if implemented in all 50 states.

This announcement is not likely to open any jail cells though, the Federal Government has avoided prosecuting petty drug crimes since the Obama administration and “simple use and possession” is only a misdemeanor offense – it's not likely to result in significant jail time.

What does this mean for you if you have a federal conviction for use or possession?

First, the Attorney General is likely going to have to issue guidance or weigh in on exactly what – “simple use or possession means”. He is likely refer-ing to 21 U.S.C. 844 which is a misdemeanor offense. Frankly, there are not a lot of federal convictions for simple use or possession. Federal prosecutors generally don’t prosecute cases unless they involve a larger drug conspiracy. While this may sound like sweeping reform – those convicted of conspiracy or possession of a large amount may be left high and dry.

When Will Pardons Take Effect ?

Typically a pardon takes a very long time. Most presidents don’t issue pardons until their last few days in office – with some exceptions. However, with this policy change we can expect that the pardons will move swiftly. Cases will be reviewed in short order and the president will likely have some sort of ceremony while he announces the sweeping pardon’s of those convicted of marijuana offenses.

Will this Apply to Drugs Other than Marijuana?

The likely answer is no. Biden is interested in coordinating government efforts for an eventual de-scheduling of marijuana. This means that he wants everyone currently in custody for “simple use and possession” to receive a pardon so that when it is no longer a federal offense to use or possess marijuana there isn’t a disparity between those previously convicted and those who have received a benefit of the government ignoring federal law for the last 12 years. Biden has been notoriously hard on other drugs such as prescription drugs, heroin, and cocaine.

Will State Convictions Be Pardoned?

We are reading the tea leaves here but if you live in a state where marijuana is currently legal for recreational use the answer is a very likely YES. If you are in a state where it is still a crime to use and possess marijuana the answer may be a “not right now”. Many states that have still criminalized marijuana are likely to require legislative approval for such a sweeping pardon because of the potential political backlash that a swift response to Biden would cause. However, after convictions for marijuana possession continue to be pardoned by state governors across the country the other states will likely come around in order to avoid the political fallout that would be cause by refusing to overturn convictions of those impacted by misguided marijuana laws. The reality is that many of those hampered by convictions are minorities and the impact of their convictions prevent access to gainful employment and significant financial and social impacts.