Biden's Marijuana Pardons Did Not Free a Single Federal Prisoner or Deliver the Expungement He Promised

A protest at the White House calls attention to the thousands of federal cannabis offenders who remain incarcerated.

Edwin Rubis has served more than two decades of a 40-year federal prison sentence for participating in a marijuana distribution operation. Taking into account "good time" credit, he is not scheduled to be released until August 2032.

Rubis is one of about 3,000 federal prisoners whose cannabis-related sentences were unaffected by President Joe Biden's mass pardon for low-level marijuana offenders. A protest at the White House today called attention to their predicament.

Biden's October 6 proclamation applied only to U.S. citizens or legal permanent residents convicted of simple marijuana possession under the Controlled Substances Act or the District of Columbia Code, none of whom was still incarcerated. Although his pardons could benefit as many as 10,000 or so individuals, that represents a tiny percentage of all simple possession cases, which typically are charged under state law. And Biden's action will not release a single federal prisoner.

According to a 2021 report from Recidiviz, "more than 3,000 individuals are
currently serving marijuana-related sentences in federal prison." The report estimated that ending federal marijuana prohibition—a step that Biden has steadfastly resisted—would reduce the federal prison population by more than 2,800 over five years.

"Your recent executive order, while a great first step, did nothing to address the thousands of federal cannabis prisoners currently incarcerated in federal prison," 16 drug policy reform groups noted in an October 10 letter to Biden. "While your recent executive order will help many, it will not release a single one of the nearly 2,800 federal cannabis prisoners." Although "eighteen states and the District of Columbia have legalized cannabis," the letter said, "there are thousands of Americans who are serving long-term prison sentences, including some life sentences, in federal facilities for conduct involving amounts of cannabis that are far less than what dispensaries routinely handle on a daily basis."

The moral logic of Biden's distinction between simple possession and other marijuana offenses is puzzling. He says marijuana use should not be treated as a crime. Yet he is willing to let individuals like Rubis languish in prison merely for helping people use marijuana, which today is recognized as a legitimate business in most states, 19 of which allow recreational as well as medical use.

That puzzle is compounded by the fact that Biden has acknowledged the injustice of long prison terms for growing or distributing marijuana in particular cases. Last April, he announced 75 commutations for federal drug offenders. The beneficiaries included eight people convicted of marijuana offenses:

• Jose Luis Colunga received a 20-year sentence in 2010 for conspiracy to distribute and possession with intent to distribute 1,000 kilograms or more of marijuana. Colunga will now be released next October.

• Fermin Serna received a 20-year sentence in 2007 for conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana. Thanks to Biden's commutation, Serna was released in August.

• Stacie Demers received a 10-year sentence in 2016 for conspiracy to possess with intent to distribute marijuana and for aiding and abetting possession with intent to distribute marijuana. Demers is now scheduled to be released next April.

• Carry Le received a 10-year sentence in 2016 for conspiracy to possess with intent to distribute 1,000 or more marijuana plants. Le is now scheduled to be released next April.

• Quang Nguyen received a 10-year sentence in 2017 for conspiracy to possess with intent to distribute 1,000 or more marijuana plants. Nguyen is now scheduled to be released next April.

• Ramola Kaye Brown received a 12-year sentence in 2015 for conspiracy to possess with intent to distribute five kilograms or more of cocaine and less than 50 kilograms of marijuana. Biden's commutation means Brown will be released next April.

• Christopher Gunter received a 20-year sentence in 2008 for various drug offenses, including conspiracy to possess with intent to distribute more than 100 kilograms of marijuana. Thanks to Biden's commutation, Gunter was released in August.

• Paul A. Lupercio received a 20-year sentence in 2008 for conspiracy to distribute 1,000 kilograms or more of marijuana and five kilograms or more of cocaine. Thanks to Biden's commutation, Lupercio was released in August.

When it comes to cannabis consumers, Biden thinks a blanket pardon is appropriate. But when it comes to the people who supply those consumers with marijuana, he insists on individualized assessments through a backlogged system that offers hope of relief only for the lucky few.

When Rubis was locked up, he had two children, then 3 and 5 years old, and a third was on the way. "He hasn't been able to watch his kids grow up," The Washington Post notes, "and dreams of rebuilding relationships lost to time." It adds that "he's worried that by the time he is released, his mother and father will no longer be alive."

The Post notes that Rubis, who was born in El Salvador and immigrated to the United States with his family as a child, "has earned three degrees, including a master's in Christian counseling, and is working on his doctorate, mentored others who are incarcerated, worked as a law library clerk and as a dental assistant, and led Christian Bible studies." He "has gained the support of prison staffers, including a unit manager, the staff chaplain and a library supervisor, who wrote letters submitted in a court motion to reduce Rubis's sentence, describing how Rubis is kind and patient, has a positive attitude and is dedicated to bettering his life and others."

Rubis, in short, has displayed all the signs of the "rehabilitation" that occasionally earns federal prisoners clemency. But that approach assumes that it was just to imprison him to begin with for conduct that violated no one's rights, conduct that has made many other people successful and respected entrepreneurs as marijuana prohibition has crumbled in one state after another.

"I'm keeping my promise that no one should be in jail for merely using or possessing marijuana," Biden said on Friday. "None. And the records, which hold up people from being able to get jobs and the like, should be totally expunged. Totally expunged."

That mercy, Biden added, does not extend to people convicted of other marijuana offenses. "You can't sell it," he said. "But if it's just use, you're completely free."

According to the Biden administration, anyone falling into that category was already free. And even the promise of expungement is more than Biden can deliver.

"No one should be in jail because of marijuana," Biden said while running for president. "As president, I will decriminalize cannabis use and automatically expunge prior convictions." His mass pardon did not accomplish either of those things, which are beyond Biden's powers "as president."

Decriminalizing marijuana use would require new legislation. Unless and until Congress acts, simple possession will remain a federal crime punishable by a fine of $1,000 or more and up to a year in jail.

As for expungement, it is available to people convicted of simple possession under federal law if they were younger than 21 at the time of the offense. Under that provision, "the effect of the order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or institution of criminal proceedings." That means "a person concerning whom such an order has been entered shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge such arrests or institution of criminal proceedings, or the results thereof, in response to an inquiry made of him for any purpose."

But for people who do not meet that law's narrow criteria, expungement would require a new act of Congress. As Harris Bricken lawyer Vince Sliwoski notes, Biden's proclamation "doesn't expunge the underlying convictions at issue, or clear anyone's record." Sliwoski adds that "in many ways" the pardon recipients "find themselves in a similar spot today as prior to October 5," because "they are still walking around as convicted criminals of record, and will be for the foreseeable future."

When he announced his mass pardon, Biden noted that people convicted of simple possession "may be denied employment, housing, or educational opportunities as a result." He claimed that "my action will help relieve the collateral consequences arising from these convictions." Yet without expungement, people still have to report those convictions when they apply for jobs or housing. And if they are convicted while enrolled in college, it can still jeopardize their access to student aid.

Although Biden can't unilaterally eliminate those "collateral consequences," he could support legislation to eliminate them. But like freedom for federal marijuana prisoners and decriminalization of possession, the expungement Biden promised seems to have fallen by the wayside.