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What Biden’s Marijuana Pardon Proclamation Does — and Does Not Do

In early October, President Joe Biden issued a proclamation pardoning certain individuals previously charged with or convicted of simple marijuana possession offenses under federal and Washington, D.C., law.  

At the time, a senior administration official told reporters that “there are no individuals currently in federal prison solely for simple possession of marijuana.”

Yet, the president more than a week later exaggerated the scope of his pardon when he claimed he was keeping a promise not to incarcerate those convicted of simple possession charges.

“I’m keeping my promise that no one should be in jail merely for using or possessing marijuana,” Biden said in Oct. 18 remarks at a District of Columbia theater. “You should not be in jail.”

The pardon does not apply to anyone in jail for violating state or local law. In addition, the Department of Justice has said the pardon will not apply to federal charges for simple possession offenses committed after Oct. 6. 

For this article, we’ll review what Biden’s proclamation does — and does not do.

Biden’s Marijuana Pardon

Biden issued the pardon proclamation on Oct. 6. “Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit,” he said in a statement making the announcement.

As of this year, 37 states and D.C. allow for medical use of marijuana. Meanwhile, 19 states and D.C. already have legalized small amounts of marijuana for recreational use. 

Biden’s proclamation specifically grants “a full, complete, and unconditional pardon” to people who were U.S. citizens or lawful permanent residents at the time they committed or were convicted of simple possession of marijuana in violation of either the federal Controlled Substances Act or D.C. Code 48–904.01(d)(1). Distribution, possession with intent to distribute and any other marijuana charges are not pardonable offenses under the proclamation.

The Department of Justice says that a presidential pardon is “an expression of the President’s forgiveness,” and Biden has emphasized that it can be of assistance to individuals who may have been denied employment, housing or other opportunities due to a prior offense. It also may help some who may have lost civil abilities, such as the right to vote, because of a conviction.

To be clear, though, the Justice Department says the pardon does not expunge a conviction, which generally means the offense would be removed from the person’s permanent record. While running for president in 2020, Biden promised that, if elected, he would “decriminalize cannabis use and automatically expunge prior convictions.”

His proclamation has other limitations, too.

For instance, it excludes individuals who were simultaneously convicted of possession and another drug offense. 

“For example, if you were convicted of possessing marijuana and cocaine in a single offense, you do not qualify for pardon under the terms of President Biden’s proclamation,” the Justice Department explains. “If you were convicted of one count of simple possession of marijuana and a second count of possession of cocaine, President Biden’s proclamation applies only to the simple possession of marijuana count, not the possession of cocaine count.”

Biden also is not pardoning “all prior Federal offenses of simple possession of marijuana,” as he has claimed. The proclamation specifically excludes people who were “non-citizens not lawfully present in the United States at the time of their offense.” That could include some people who may now be citizens or green-card holders.

Furthermore, as we said, Biden’s proclamation also is unlikely to get many people out of jail — contrary to what he implied by claiming that he was “keeping my promise that no one should be in jail merely for using or possessing marijuana.”

Because Biden’s pardon only applies to federal charges and convictions, including violations of D.C. criminal code, no one who is, or was, incarcerated for breaking state or other local laws qualifies.

It’s also unclear if anyone will be released from federal prison due to Biden’s pardon. A senior administration official told reporters in an Oct. 6 press call that “there are no individuals currently in federal prison solely for simple possession of marijuana.”

The White House did not tell us the source of that statistic. It may come from a recent U.S. Sentencing Commission report that said “as of January 29, 2022, no offenders remain in BOP custody” for simple possession of marijuana, with “BOP” being a reference to the Federal Bureau of Prisons. We asked the BOP for more recent data, but we were directed to the Department of Justice, which has not yet told us if anyone is still in federal prison for that offense.

For a first federal offense, simple possession of marijuana is a misdemeanor punishable by up to one year in prison and a minimum fine of $1,000. The penalties increase for repeat offenses.

In the same background call with the media, the senior administration official said that “over 6,500 people with prior federal convictions for simple possession of marijuana and thousands of such convictions under D.C. law could benefit from this relief.”

That also appears to be a reference to the Sentencing Commission report, which said there were 6,577 U.S. citizens convicted of simple possession of marijuana at the federal level between fiscal years 1992 and 2021. The commission said “1,122 Resident/Legal Alien Offenders” also were convicted over that same time period.

Because he does not have jurisdiction over state-level offenses, Biden called on governors to follow his lead.

“Just as no one should be in a federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either,” the president said in his Oct. 6 statement. But some governors already have indicated they will not, or do not have the authority to, issue mass pardons for prior violations.

The Justice Department also has said that Biden’s pardon does not guarantee that no one will be federally charged in the future.

“The proclamation pardons only those offenses occurring on or before October 6, 2022,” the DOJ said in a post answering questions about the proclamation. “It does not have any effect on marijuana possession offenses occurring after October 6, 2022.”

In his announcement, Biden said he was asking the attorney general and health and human services secretary to initiate an expeditious administrative review of how marijuana is scheduled under federal law. Marijuana is categorized as a Schedule I drug under the Controlled Substances Act along with drugs such as 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,” the Drug Enforcement Administration says.

Rescheduling, or descheduling, marijuana could change the way the drug is regulated and how its use is penalized.

“If marijuana remains a controlled substance under the 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 law and state medical marijuana laws,” the Congressional Research Service says in a recently updated report. “The creation of a new schedule solely for marijuana would give Congress an opportunity to modify the criminality of marijuana under the CSA.”

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