It’s been more than four months since President Joe Biden announced that he would pardon people convicted of simple marijuana possession under federal or D.C. law. At the time, the Justice Department said it would “expeditiously handle the President’s announcement.” To that end, it said, “the Office of the Pardon Attorney will begin implementing a process to issue certificates of pardon to affected individuals,” which would result in “restoration of political, civil and other rights.” Yet according to the Office of the Pardon Attorney’s website, “Certificate of Pardon applications for simple possession of marijuana are not yet available.”
It’s not clear what the holdup is. I’ve asked the Department of Justice and will update this post when I hear back. But Biden, after reaping political benefits by announcing a pardon a month before the midterm elections, has not actually issued one. He got good press and helped Democrats in the midterms by inspiring voters thinking about drug policy reform. But his promise remained until he did what he asked to do.
The US Sentencing Commission (USSC) has counted 6,577 US citizens who would be eligible for the clemency that Biden has promised. This analysis includes individuals sentenced from FY 1992 through FY 2021, while Biden’s proclamation applies to any U.S. citizen who “committed a felony possession of marijuana” on or before the date of the proclamation, October 6, 2022. The USSC also identified 1,122 general possession cases involving noncitizens who were lawfully residing in the United States. Within that group, Biden’s announcement is limited to “lawful permanent residents.” All told, the pardons, estimating that Biden could benefit from issuing them to around 10,000 people when cases before and after the period covered by the USSC’s analysis are included.
As forgiving, it’s a big deal. Journalists and activists responded accordingly.
“Biden Pardons Thousands of People Convicted of Federal Marijuana Possession Charges,” said the headline above an NPR report. The The New York Times The headline was similar: “Biden Pardons Thousands Convicted of Marijuana Possession Under Federal Law.” Subhead said Biden’s announcement “represents a fundamental shift in America’s response to drugs, which have been at the center of the clash between culture and policing for more than half a century.” Sixteen drug policy reform groups called it “a great first step,” though they also noted that it “does nothing to address the thousands of federal marijuana inmates currently in federal prisons.”
As the complaint suggests, there were caveats. Biden’s announcement did not include those convicted of growing or distributing marijuana, and the pardon would not free a single federal prisoner. Federal convictions account for a small fraction of marijuana possession cases, which are typically prosecuted under state law. And although Biden said the criminal records of people who were convicted of “only using or possessing marijuana” should be “completely expunged,” pardons won’t accomplish that, as new laws would be needed to establish an automatic expungement process.
Biden nevertheless said that “my action will help alleviate the collateral consequences that arise from this conviction,” which is laudable, at least in some circumstances. “Expungement is a judicial remedy rarely granted by courts and cannot be granted by the Department of Justice or the President,” warns the Apology Attorney’s Office. “If you are granted a presidential pardon, the pardoned offense will not be removed from your criminal record.” Instead, “federal convictions [and] Both pardons will appear on your record But “a pardon will facilitate removal of the legal disability imposed by the conviction,” the office says, “and should lessen some of the stigma associated with the conviction. Additionally, a pardon may be helpful in obtaining a license, bond, or employment.”
Morgan Fox, political director of the National Organization for the Reform of Marijuana Laws (NORML), noted in an email that a presidential pardon is no guarantee that an employer, landlord, or licensing authority will overlook the crime of possessing marijuana. “The decision as to whether the presence of a conviction—even if forgiven—will affect the applicant will generally be left up to the employer or other relevant entity,” Fox says. But “a pardon recipient can present the pardon certificate directly to the background check entity,” he adds, and the pardon must also appear in official records.
As NORML said in a press release, “a certificate of pardon can go a long way toward helping someone with a conviction avoid many of the collateral consequences associated with a criminal record and live a more fulfilling life.” But people will get that benefit only if Biden issues the pardon he promised. “Thousands of people with federal criminal records for simple possession of marijuana are eligible for amnesties that will help them get jobs, housing, education and more,” NORML noted. “Many of those eligible for this amnesty have been waiting years for relief. They don’t have to wait any longer.”
written in the mountain, NORML Deputy Director Paul Armentano called Biden’s announcement “truly historic” because “never before has a sitting president publicly acknowledged the failure of America’s nearly century-old experiment with marijuana prohibition.” But despite the “congratulatory brouhaha” that followed Biden’s announcement, Armentano notes, the USSC received “none” of those identified as eligible for clemency.
Susan Rice, director of the Domestic Policy Council, touted the Biden administration’s achievements on Twitter in December to brag That Biden “addressed our failed approach to marijuana by pardoning all federal and DC general marijuana possession offenses.” That claim was and remains premature.