President Joe Biden announced on Thursday that he’s pardoning individuals charged with simple marijuana possession on a federal level, but his decision does not affect broad groups of Americans and non-citizens charged with the crime.
There’s historical precedent for mass application of the presidential pardon power, but the sheer size of Biden’s pardon list stands out among most recent predecessors. The White House estimates “6,500 people with prior federal convictions” and “thousands of such convictions under (Washington, DC) law could benefit from this relief.”
While Biden is issuing pardons for federal charges of simple marijuana possession, his move on Thursday did not decriminalize the drug and it remains a federal crime to possess small amounts of marijuana on federal land. Biden did announce an expedited review of how marijuana is scheduled under federal law – a move that could change how the drug is regulated in the United States and could help guide criminal laws.
In a video announcing his executive actions, Biden said that “no one should be in jail just for using or possessing marijuana.”
“It’s legal in many states, and criminal records for marijuana possession have led to needless barriers to employment, housing, and educational opportunities,” he continued. “And that’s before you address the racial disparities around who suffers the consequences. While White and Black and Brown people use marijuana at similar rates, Black and Brown people are arrested, prosecuted and convicted at disproportionate rates.”
But despite those words, there is still a broad set people who will not see immediate relief from Biden’s recent actions – some who he could have pardoned and some who he doesn’t have the power to pardon.
Individuals facing state marijuana charges
Among those who Biden does not have power to pardon are thousands of individuals who have faced state charges for simple marijuana possession.
While Americans’ attitudes about marijuana consumption are changing – smoking weed is becoming more popular than smoking tobacco, and 19 states, two US territories, and DC have legalized small amounts of marijuana – there are still laws in most states that criminalize possessing small amounts of marijuana.
The full scope of individuals who could be pardoned as a result of state clemency for simple marijuana possession is unclear, but available law enforcement data analyzed by the American Civil Liberties Union found that in 2018, for example, there were almost 700,000 marijuana arrests, which accounted for more than 43% of all reported drug arrests. Not all drug arrests, however, lead to charges nor are they all categorized as simple marijuana possession.
The President’s presidential pardon power is limited to federal criminal cases and does not extend to state criminal charges. As part of his moves Thursday, Biden called on governors to issue similar pardons to those with state marijuana offense convictions.
Unlawfully present non-citizens charged federally with simple possession of marijuana
Biden’s presidential proclamation states that his pardon “does not apply to individuals who were non-citizens not lawfully present in the United States at the time of their offense.”
This suggests that undocumented immigrants will not be pardoned for existing federal charges for simple marijuana possession.
But a senior administration official on Thursday noted that as a result of Biden’s proclamation, “anyone who has committed that offense could not be prosecuted federally, at this point, based on that conduct.”
The official did not make a distinction between citizens and non-citizens.
Data from the US Sentencing Commission indicates that during fiscal year 2021 some 72% of federal offenders in a case of marijuana possession were non-citizens. But it’s not clear how many non-citizens count as “lawfully” or “unlawfully” present in the country.
Matt Cameron, a Boston-based immigration attorney who also teaches immigration policy at Northeastern University, told CNN that the decision to not include non-citizens who were not lawfully present could have dire consequences for some people.
“If you’re in deportation proceedings or applying for a visa or applying green card, and you’re charged for possession, you will be denied. And you won’t be eligible for a waiver,” he said.
He added, “You could be denied a green card and you would be denied for life.”
Individuals charged in the future with federal simple marijuana possession offenses
The Department of Justice says that federal marijuana possession offenses that occur after October 6, 2022 – the date of the presidential proclamation – will not protect individuals from being charged down the road.
“The proclamation pardons only those offenses occurring on or before October 6, 2022. It does not have any effect on marijuana possession offenses occurring after October 6, 2022,” DOJ says.
However, the pardon does apply to pending federal simple marijuana possession charges, including those where conviction has not been obtained by October 6.
Individuals charged with other offenses
In a statement about his presidential proclamation, Biden emphasized that “even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.”
While Biden’s pardons will impact thousands who face simple possession charges, the act of clemency will not apply to all types of federal marijuana offenses.
“Conspiracy, distribution, possession with intent to distribute, and other charges involving marijuana are not pardoned by the proclamation,” the Justice Department says.
The DOJ also says the pardon does not apply to individuals who were convicted of possessing multiple different controlled substances in the same offense – including a charge related to possessing marijuana and another controlled substance in a single 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 explained. “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.”
The move also is not expected to remove any individuals from prison.
The administration official speaking to reporters on Thursday said that “there are no individuals currently in federal prison solely for simple possession of marijuana.”
Individuals seeking additional guidance regarding federal pardon eligibility and procedures should visit https://www.justice.gov/pardon for more information.