Here’s who isn’t eligible for Biden’s marijuana pardon
President Joe Biden announced Thursday that he is pardoning those charged with simple possession of marijuana at the federal level, but his decision does not affect broad groups of Americans and noncitizens charged with the crime.
There is historical precedent for the massive application of presidential pardon power, but the sheer size of Biden’s pardon list stands out among more recent predecessors. The White House estimates that « 6,500 people with previous federal convictions » and « thousands of those convictions under (Washington, DC) law could benefit from this relief. »
While Biden grants pardons for federal charges of simple possession of marijuana, his decision on Thursday did not decriminalize the drug and possession of small amounts of marijuana on federal land remains a federal crime. Biden announced an expedited review of how marijuana is regulated 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 « 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 unnecessary barriers to employment, housing, and educational opportunities, » he continued. “And that’s before you get into 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’s still a wide range of people who won’t see immediate relief from Biden’s recent actions — some he could have forgiven and some he doesn’t have the power to forgive.
Among those whom Biden does not have the power to pardon are thousands of people who have faced state charges for simple possession of marijuana.
While Americans’ attitudes toward marijuana use are changing — smoking weed is becoming more popular than smoking tobacco, and 19 states, two U.S. territories, and DC have legalized small amounts of marijuana — there are still laws in most states that criminalize possession of small amounts of marijuana.
The full range of people who could be pardoned as a result of state clemency for simple possession of marijuana is unclear, but available law enforcement data analyzed by the American Civil Liberties Union revealed that in 2018, for example, there were nearly 700,000 marijuana arrests, which accounted for more than 43% of all reported drug-related arrests. However, not all drug arrests result in charges and not all are classified as simple possession of marijuana.
The president’s presidential pardon power is limited to federal criminal cases and does not extend to state criminal charges. As part of his demarches on Thursday, Biden called on governors to issue similar pardons to those convicted of marijuana offenses in the state.
Biden’s presidential proclamation states that his pardon « does not apply to persons who were not lawfully present citizens of the United States at the time of their offense. »
This suggests that undocumented immigrants will not be pardoned for existing federal charges for simple possession of marijuana.
But a senior administration official noted Thursday that following Biden’s proclamation, « anyone who committed this offense could not be prosecuted federally, at this stage, based on this conduct. »
The official did not distinguish between citizens and non-citizens.
Data from the U.S. Sentencing Commission indicates that in fiscal year 2021, some 72% of federal offenders in a marijuana possession case were non-citizens. But it is unclear how many non-citizens are considered ‘legally’ or ‘illegally’ present in the country.
Matt Cameron, a Boston-based immigration attorney who also teaches immigration policy at Northeastern University, told CNN that the decision not to include non-citizens who were not legally present could have disastrous consequences for some people.
“If you are in deportation proceedings or if you apply for a visa or a green card, and you are charged with possession, you will be refused. And you will not be eligible for a waiver,” he said.
He added: « You could be denied a green card and you would be denied for life. »
The Justice Department says federal marijuana possession offenses that occur after Oct. 6, 2022 — the date of the presidential proclamation — will not shield individuals from subsequent charges.
“The proclamation only pardons offenses committed on or before October 6, 2022. It has no effect on marijuana possession offenses occurring after October 6, 2022,” the DOJ states.
However, the pardon applies to pending federal charges of simple possession of marijuana, including those for which a conviction has not been obtained by October 6.
In a statement on his presidential proclamation, Biden emphasized that « even as federal and state regulation of marijuana changes, significant limitations on underage trafficking, marketing and sales should remain 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 said.
The DOJ also says the pardon does not apply to people who have been convicted of possession of multiple different controlled substances in the same offense — including a charge related to possession of marijuana and another controlled substance in one offense. single offence.
« For example, if you were convicted of possession of marijuana and cocaine in a single offense, you are not eligible for a pardon under the terms of President Biden’s proclamation, » the Justice Department explained. « If you have been 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 count of simple possession of marijuana, not the count possession of cocaine. »
This decision is also not expected to release individuals from prison.
The administration official speaking to reporters on Thursday said « there is currently no one in federal prison just for simple possession of marijuana. »
Persons seeking additional guidance regarding federal pardon eligibility and procedures should visit https://www.justice.gov/pardon for more information.