The Volokh Conspiracy
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Biden Expands Pardons for Marijuana Possession
It's a commendable, but very modest, expansion of a step he took last year.
Today, President Biden issued a proclamation granting pardons to all people who committed or were convicted of "simple marijuana possession" under federal and District of Columbia law. This is an admirable step in the right direction. But, as Reason's C.J. Ciaramella explains, it's only a modest expansion of a marijuana possession pardon initiative Biden undertook last year, when he pardoned all US citizens and permanent residents who had committed the offense of simple marijuana possession under the federal Controlled Substances Act and DC law up to that point.
As Ciaramella notes, the new proclamation expands pardons to certain offenders convicted of possession on federal lands. I would add that it also covers anyone who committed the relevant offenses in the fourteen months since Biden's previous pardons (which only covered people who had committed them up to early October of last year). Also, unlike last year's pardons, this year's also cover people who committed the DC offense of "attempted simple possession of marijuana," which is a distinct crime from actual possession. Not sure why this wasn't included in the October 2022 proclamation. Perhaps it was an oversight.
Like last year's marijuana pardons, this year's probably won't actually free anyone from prison. Virtually everyone serving a federal prison sentence for marijuana offenses is there for charges related to distribution. But the pardons will nonetheless benefit recipients in ways I summarized in my post about the previous round of pardons:
The fact that the pardons may not actually free any current prison inmates, doesn't mean they will have no effect. Biden rightly notes that the pardons will still help some people who may "be denied employment, housing, or educational opportunities as a result" of their past convictions. A criminal record for marijuana possession might also hurt a parent's chances in a child custody dispute. The pardons can address these issues by effectively wiping these convictions off the books.
Limited, as they are, Biden's marijuana possession pardons are commendable. But he could have done much more. A recent Gallup poll shows 70% public support for marijuana legalization, including even a majority of Republicans (55%). If Biden had made a push for simply abolishing federal laws banning possession and distribution of marijuana, he could probably have gotten it done, especially when Democrats had control of both houses of Congress during his first two years in office.
And, as Jacob Sullum has pointed out, Biden's distinction between possession and distribution makes little sense:
The moral logic of Biden's distinction between simple possession and other marijuana offenses is hard to follow. He says using marijuana should not be treated as a crime. If so, how can helping people use marijuana justify sending anyone to prison? And why should people convicted of assisting cannabis consumption be saddled with felony records for the rest of their lives?
There is similarly no justification for excluding offenders who aren't US citizens or permanent residents from the scope of the pardons. The justice of punishing people for marijuana possession doesn't depend on citizenship or residency status.
Biden today also pardoned 11 people serving disproportionately long sentences for various other drug offenses.
In my post on last year's pardons, I noted that Biden's use of the pardon power is far better than Trump's, which focused on cronies and political allies. Better than Trump in this area is a very low standard of comparison. But it's a sadly relevant one, as Trump looks likely to become the GOP nominee again.