President Biden took dramatic steps on Oct. 6 to overhaul U.S. marijuana policy, finally acting on a pledge he made during his presidential campaign two years ago.
First, Biden pardoned all people convicted of marijuana possession under federal law between 1992 and 2021, a move that affects at least 6,500 men and women plus several thousand more in the District of Columbia. Second, he said that his administration will review whether marijuana should be reclassified so that it is not in the same Schedule 1 drug category as heroin and LSD.
While many states have legalized medical or recreational marijuana, it remains illegal at the federal level. Full national legalization or decriminalization of pot would require action by Congress — and Biden stops short of saying he favors anything more than reclassifying marijuana possession to a lesser offense.
But the executive actions move the federal government in the direction of the states that have legalized pot and eliminated or reduced criminal punishments for simple possession.
“Too many lives have been upended because of our failed approach to marijuana,” he said. “It’s time that we right these wrongs.”
What Does a Pardon Do?
Criminal records for marijuana possession have created “needless barriers” to employment, housing, and educational opportunities, Biden said. But pardons don’t really wipe the slate clean for people with criminal marijuana possession convictions on their records.
According to the Justice Department, however, a pardon does help by removing “legal disabilities” caused by a conviction, and “should lessen to some extent the stigma” that many people with convictions on their records face.
DOJ points out that pardon recipients will still be required to disclose prior convictions on any form that requires such information. However, they may also disclose that they received pardons.
Erasing a criminal record requires expungement, a court-ordered process.
DOJ says that those seeking expungement of a federal marijuana possession offense should contact the federal district court where they were convicted. States have varying procedures for those seeking expungements. If you are trying to expunge a state-level conviction, DOJ suggests contacting the offices of the governor or attorney general of your state for assistance.
Order Doesn’t Affect Those in State Prisons
It’s important to point out that the pardons mostly affect people who were once in prison on federal pot-possession charges. Only a handful of people currently behind bars will win their freedom.
According to the United States Sentencing Commission, just 149 people were in federal prisons for simple possession of marijuana in 2021, a decrease of more than 2,000 in 2015.
Although numbers are hard to come by, far more are serving time for possession in state prisons, which are not affected by the pardons. Biden is encouraging governors in those states to follow in issuing pardons.
Biden’s pardons will be issued through an administrative process overseen by the Justice Department. Those people eligible for the pardons will receive a certificate that they’ve been forgiven for that offense.
What Will the Impact Be?
The scope of Biden’s pardon is unusually broad. But the bigger impact may be what it signals. It is the most significant step a president has ever taken to loosen federal marijuana laws.
With the midterm election only weeks away, some Republicans criticized the move as soft on crime and a calculated maneuver to draw more young people to the polls and, presumably, vote Democratic.
But at a time when two-thirds of Americans say they think marijuana should be legalized, Biden’s actions may also represent an acknowledgment that federal marijuana laws need to be more in line with what Americans believe.
Whether Congress will follow through, however, is a question for another day.
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