Biden’s Federal Marijuana Pardon (October 2022)

To say we were happy and our hopes for justice were raised to hear President Biden’s October 6 announcement that he's going to grant pardons to anyone convicted of a federal crime for simple marijuana possession would be an understatement. Three weeks after one of the most sweeping mass pardons in US history, second only to former President Jimmy Carter who pardoned thousands of Vietnam War draft resisters, it’s stoking an onslaught of as many questions as emotions!

So, let’s quickly recap the details and touch on the broader picture as well.

"Polling from a variety of sources shows that support for marijuana legalization has been increasing consistently over the past twenty years. Biden's action is in line with how the vast majority of Americans feel about the issue," said Patrick Murray, director of the independent Monmouth University Polling Institute, in a news release.

Here are the main takeaways of this legislation:

• Biden’s pardon pertains to simple possession of marijuana only. Other kinds of marijuana charges — intent to distribute, conspiracy, etc. — are not covered. "You can't sell it, the president said. "But if it's just use, you're completely free." What's not clear, and is the subject of recent protests, is whether "the president's latest remarks simply describe the scope of his current marijuana pardons" or if they're an indication he's ruling out broadening the scope of clemency relief in the future.
• It’s estimated that more than 6,500 people nationwide will directly benefit from Biden’s pardon. Of these people, none are currently in federal prison — so no release of inmates. According to the Department of Justice, a presidential pardon is "an expression of the President's forgiveness" and that the pardon does not expunge or remove a conviction from a person's record.
• Most marijuana crimes occur within the jurisdictions of states. Because the President does not have jurisdiction over state-level offenses, this pardon has no impact on those crimes or convictions. But Biden showed leadership as President and called on state governors to follow his lead.
• Unlawfully present non-citizens charged federally are not eligible under this pardon.
• Individuals charged with other offenses are not eligible under this pardon.
• The Justice Department has also stated that this pardon does not apply to future offenses or mean that you cannot be federally charged with future offenses.

Booker on Biden's 2019 Democratic Debate Marijuana Remarks: Then Former Vice President Biden said, "Number one, I think we should decriminalize marijuana period." Yet the President's pardon, limited in scope, has many concerned and puzzled.

Why the Marijuana Pardon’s Important

It’s mostly a big deal for two reasons because and maybe even a bellwether. Biden’s action reinvigorates the national conversation around cannabis regulation and reform. It also showed leadership towards the states calling upon them to pass similar legislation.

Biden seems to be dipping his toes in the water and indicating a willingness to “turn the ship" away from the War on Drugs calamity. (The War on Drugs was a detrimental movement, a war on human rights and science that started as far back as the late 1930's with Harry Anslinger's, "I want to be top cop, so I need an issue," (Reefer Madness period) and resurged in the early 1970s with Nixon's, "We can use this against the antiwar vote.") At the very least, it seems Biden is indicating the desire to do so. And, hey, a change in tone and intention coming from the office of the presidency, despite critics justified claims of the pardon falling short, matters!

Also notable, as part of this initiative, Biden's called on the attorney general and his Health and Human Services agency to review marijuana’s classification under federal law to see If it still makes sense to include it on the list of Schedule I substances. A list that includes heroin, LSD, and Ecstasy.

"Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse," as defined by the Drug Enforcement Administration. "If marijuana remains a controlled substance under the Controlled Substance Act (CSA) under any schedule, that would maintain the existing conflict between the federal government and states that have legalized recreational marijuana, though moving marijuana to a less restrictive schedule could help mitigate conflicts between federal and state medical marijuana laws," the Congressional Research Service reported in a recent report. "The creation of a new schedule solely for marijuana would give Congress an opportunity to modify the criminality of marijuana under the CSA."

Whether this is a nod from the current administration's openness to consider federally decriminalizing marijuana in the future remains to be seen. Decriminalization and full-blown legalization require congressional legislation. But, if the head of the executive branch is on board — that might be enough sway (at some point) to answer the call of the vast majority of Americans in favor to federally legalize marijuana. According to a Monmouth University poll, the White House's move has been met with broad public approval."

Overall, two-thirds (68%) of the American public supports legalizing the possession of small amounts of marijuana for personal use. This includes 76% of Democrats and 73% of independents, along with 52% of Republicans. By age, support is highest among those under 35 years old (87%) but also includes a majority of those age 55 and over (53%). ... Similarly, 69% of Americans approve of Biden issuing pardons for people convicted on federal charges for simple marijuana possession.

President Biden’s action is also significant because it sets a precedent. It’s a “role model” for lower-level jurisdictions to ponder, follow, or adapt and adopt. Whether states, reservations, and municipalities tweak their regulations, though, is a whole other nug-filled stash jar.

It’s a Promising First Baby Step for Cannabis Reform

While Biden’s move is a presidential shift in policy, and progress in the right direction, it falls short of the cannabis reform our country desperately needs.

For those hoping to see marijuana law and policy reforms untangle the legacy of the country's War on Drugs, Biden did not go far enough. And meaningful post-conviction reform still remains largely elusive in an America that echoed with promises to scrutinize criminal justice following the murder of George Floyd.

Students for Sensible Drug Policy, Last Prisoner Project, DCMJ, and others, sent a letter to Biden this month. It acknowledged his executive order as “a great first step” but pleaded for justice. These groups assert that Biden's pardon "did nothing to address the thousands of federal cannabis prisoners currently incarcerated.” We join in their request that President Biden please keep his promise and use his presidential power of clemency and pardon to release cannabis prisoners, who've been charged with selling marijuana and were excluded from the pardon.

We stand with the majority of Americans who long for the start of a comprehensive and meaningful succession of equitable federal- and state-level policy changes and remedial measures. While the scales of justice are tipping in the right direction, the legal landscape remains unjust. We encourage you to stay informed and stay active in the fight for fair and equitable cannabis laws.

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FAQs Buzzin’ Through the Hive

What is simple marijuana possession?

It’s when a person possess a small quantity of marijuana with no intent to sell or otherwise distribute it. The possession charge can’t be tied to other crimes, like robbery.

Is simple possession (of marijuana) a felony?

Federally, it starts as a misdemeanor but can escalate to a felony depending upon the circumstances (like other charges).

What does President Biden’s October 2022 marijuana pardon do?

It forgives convicted at the federal level of simple possession of marijuana crimes. It doesn’t find them to be innocent or clear their criminal records of the crimes, though. Biden’s action also reignites the conversation around cannabis regulation and reform.