It has 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 administer the President's proclamation." Toward that end, it said, "the Office of the Pardon Attorney will begin implementing a process to provide impacted individuals with certificates of pardon," thereby "restoring political, civil, and other rights." Yet according to the Office of the Pardon Attorney's website, "the Application for Certificate of Pardon for Simple Possession of Marijuana is not yet available."
It's not clear what the holdup is. I've asked the Justice Department and will update this post if and when I receive a reply. But Biden, after reaping political benefits by announcing the pardons a month before the midterm elections, has not actually issued any. He got good press and may have helped Democrats in the midterms by motivating voters who care about drug policy reform. But his promise remains just that until he does what he said he would do.
The U.S. Sentencing Commission (USSC) counted 6,577 U.S. citizens who would be eligible for the pardons that Biden promised. That analysis included people sentenced from FY 1992 through FY 2021, while Biden's proclamation applies to any U.S. citizen who "committed the offense of simple possession of marijuana" on or before October 6, 2022, the date of the proclamation. The USSC also identified 1,122 simple possession cases involving noncitizens who were legally living in the United States. Within that group, Biden's proclamation is limited to "lawful permanent residents." All told, the pardons, assuming that Biden gets around to issuing them, might benefit in the neighborhood of 10,000 people when cases before and after the period covered by the USSC's analysis are included.
As pardons go, that's a big deal. Journalists and activists reacted accordingly.
"Biden Pardons Thousands of People Convicted on Federal Marijuana Possession Charges," said the headline above an NPR report. The New York Times headline was similar: "Biden Pardons Thousands Convicted of Marijuana Possession Under Federal Law." The subhead said Biden's proclamation "represents a fundamental change in America's response to a drug that has been at the center of a clash between culture and policing for more than a half-century." Sixteen drug policy reform groups called it "a great first step," although they also noted that it "did nothing to address the thousands of federal cannabis prisoners currently incarcerated in federal prison."
As that complaint suggests, there were caveats. Biden's proclamation did not include people convicted of growing or distributing marijuana, and the pardons would not free a single federal prisoner. Federal convictions account for a tiny share of marijuana possession cases, which are typically prosecuted under state law. And although Biden said the criminal records of people who were prosecuted for "merely using or possessing marijuana" should be "totally expunged," the pardons would not accomplish that, because establishing an automatic expungement process would require new legislation.
Biden nevertheless averred that "my action will help relieve the collateral consequences arising from these convictions," which is plausible in at least some circumstances. "Expungement is a judicial remedy that is rarely granted by the court and cannot be granted within the Department of Justice or by the President," the Office of the Pardon Attorney warns. "If you were to be granted a presidential pardon, the pardoned offense would not be removed from your criminal record." Instead, "the federal conviction [and] the pardon would both appear on your record." But "a pardon will facilitate removal of legal disabilities imposed because of the conviction," the office says, "and should lessen to some extent the stigma arising from the conviction. In addition, a pardon may be helpful in obtaining licenses, bonding, or employment."
Morgan Fox, political director at the National Organization for the Reform of Marijuana Laws (NORML), notes in an email that a presidential pardon is no guarantee that an employer, landlord, or licensing authority will disregard a marijuana possession conviction. "The decision about whether or not the presence of a conviction—even if pardoned—will impact the applicant will usually be left to the employer or other relevant entity," Fox says. But "a pardon recipient can present the pardon certificate directly to the entity performing a background check," he adds, and the pardon also should appear on the official record.
As NORML put it in a press release, "the pardon certificate can go a long way toward helping someone with a conviction to avoid the many collateral consequences associated with a criminal record and live a more fulfilling life." But people will receive that benefit only if Biden actually issues the pardons he promised. "Thousands of people with federal criminal records for simple marijuana possession are eligible for a pardon that would help them obtain employment, housing, education, and more," NORML noted. "Many of the people who are eligible for these pardons have been waiting years for relief. They shouldn't have to wait any longer."
Writing in The Hill, NORML Deputy Director Paul Armentano calls Biden's proclamation "truly historic" because "never before had a sitting president overtly acknowledged the failures of America's nearly century-old experiment with cannabis prohibition." But despite the "congratulatory brouhaha" that followed Biden's announcement, Armentano notes, "none" of the people that the USSC identified as eligible for pardons has received one.
Touting the Biden administration's accomplishments on Twitter in December, Domestic Policy Council Director Susan Rice bragged that Biden had "addressed our failed approach to marijuana by pardoning all federal and D.C. simple marijuana possession offenses." That claim was and remains premature.
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