The news on Friday that President Joe Biden is issuing pardons to Americans convicted of certain federal marijuana crimes is a sign the government is advancing its stance on cannabis, but experts say the pardons won’t have as broad an impact as advocates for the decriminalization of marijuana might hope.
Biden said his announcement is part of his larger effort to reform the U.S. criminal justice system to “make the promise of equal justice a reality,” expanding on an earlier proclamation on marijuana use last year.
He also said he was granting clemency to 11 people with nonviolent drug convictions who would likely have received shorter sentences if convicted today.
“Any effort whatsoever to assist those with cannabis-related convictions – whether it’s federal or state – given our evolving attitude towards cannabis, is 100% welcome,” said Patrick Nightingale, a criminal defense attorney in Pittsburgh. “I will take whatever the president can give us, but it’s just not really going to affect that many people.”
Nightingale and other experts on cannabis law told USA TODAY it’s relatively rare for the federal government to prosecute people for simple marijuana possession and the other marijuana crimes covered by the proclamation, and it’s not clear how many people the pardons will help.
What does Biden’s pardon for marijuana crimes do?
In October 2022, Biden announced a proclamation that pardoned people convicted of simple possession under federal law. The move Friday expands the types of crimes people can be pardoned for to include attempted simple possession of marijuana and the use of marijuana on federal lands and in Washington, D.C. It doesn’t apply to state-level marijuana convictions.
Biden said he hopes the move will help people with past convictions who have experienced “unnecessary collateral consequences,” including barriers to housing, jobs and education.
It does not apply to anyone convicted of having marijuana they intended to sell or driving under the influence of marijuana, Biden said.
Anyone who was previously convicted of a relevant federal marijuana charge can apply to the Justice Department and they will be issued a certificate of pardon, which the White House said should clear prior obstacles they faced getting jobs and housing.
Nightingale, who is also a former prosecutor and the director of the Pittsburgh Chapter of the National Organization for the Reform of Marijuana Laws, said that’s an important part of the proclamation because employers don’t distinguish between a federal conviction for marijuana and a conviction involving another controlled substance.
He said a federal conviction has “long-lasting, if not lifelong-lasting implications for someone who may have made a simple mistake when they were 20, 21 years old,” and the Biden administration’s stance is a step in the right direction toward clearing those barriers for some people.
Who does it help?
The proclamation’s reach is likely limited because it does not apply to people convicted on state charges who make up the bulk of these drug cases, experts said.
When Biden first moved to pardon people convicted for simple federal possession charges last year, nobody was eligible for release from federal prison as a result, but over 6,500 people nationwide may have been able to overcome obstacles to housing or jobs.
“Compare and contrast that with the 50,000 Pennsylvanians who are charged with a similar offense annually in Pennsylvania, and nationwide, even with legalization, well over half a million people are being charged annually with some type of cannabis possessory offense,” Nightingale said.
Biden said he is also urging state governors to take the same action, to pardon people convicted of similar state court offenses.
“Just as no one should be in a federal prison solely due to the use or possession of marijuana, no one should be in a local jail or state prison for that reason, either,” he said.
The number of people impacted by Friday’s proclamation is likely smaller than after last year’s, because it is an expansion of the previous action meant to pardon people who might have been missed the first time around, said Jay Wexler, a law professor at Boston University who wrote the book “Weed Rules: Blazing the Way to a Just and Joyful Marijuana Policy.”
“It’s hard to imagine it impacts that many people,” Wexler said.
For example, Wexler and Nightingale said someone caught smoking marijuana on federal lands, such as a wildlife reserve or national park – even within a state where marijuana has been legalized – could be federally charged with the use of marijuana on federal property. The nation’s capital is also included in the proclamation.
“I go camping in the Allegheny National Forest, and that’s federally regulated,” Nightingale said. “So if I were to be relaxing around the campfire consuming cannabis, then there’s a reasonable possibility that I would come in contact with a federal officer who may very well decide to file a criminal charge against me.”
The proclamation also doesn’t apply to anyone who was in the U.S. illegally at the time of their offense.
PREVIOUSLY:Many Americans arrested for marijuana won’t find relief under Biden’s pardon plan
Federal prosecution for weed possession is rare, experts say
The reality is that Biden hasn’t addressed a significant portion of people who’ve been convicted of nonviolent drug crimes. In more than 20 years of working as a criminal defense attorney taking federal and state drug cases in southwestern Pennsylvania, Nightingale said he has not encountered a federal case of simple possession of marijuana.
David Adler, a Houston-based criminal defense attorney, said the same thing. In his nearly 30 years of experience dealing with drug cases, he could only think of one example, in which a young man was caught smoking a joint outside a federal courthouse. And attempted simple possession is even more rare; Adler said he couldn’t think of a single federal case amid one of the busiest federal dockets in the country.
Federal prosecutors are just more focused on higher-level drug offenses like the distribution of large quantities and people accused of selling more serious narcotics, Adler said. In the border state of Texas where Adler practices, even district attorneys are declining to prosecute simple possession cases at the state level because it takes up too many resources.
“If there’s 100 people who are going to benefit from this, I’d be shocked,” Adler said.
According to the United States Sentencing Commission, which tracks federal sentencing for marijuana-related crimes, the number of people sentenced for simple possession has been on the decline.
In fiscal year 2014, there were 2,172 people federally sentenced for simple possession. In 2021, the number was down to 145 people, according to a report from the commission published in January 2023. The District of Arizona accounted for about 80% of all federal marijuana possession sentencings since 2014.
“Federal offenders sentenced for marijuana possession in the last five fiscal years tended to be male (85.5%), Hispanic (70.8%), and non-U.S. citizens (59.8%),” the commission said.
What does this mean for the federal government’s stance on marijuana?
Wexler has taught a seminar on cannabis laws for about seven years at Boston University – always held in room 420 – and he said during that time he has witnessed an evolution on American attitudes about marijuana and state laws following suit.
This announcement is “part of a slow movement (by) the Biden administration to deal with the injustice of cannabis prohibition,” he said. In his view, the problem is that federal policy on marijuana has long been “ridiculous.”
Seventy percent of Americans favor the legalization of marijuana, according to a 2023 Gallup poll.
Marijuana remains a Schedule I drug by the U.S. Drug Enforcement Administration, meaning it is considered among the highest potential for abuse along with other drugs like heroin, LSD and ecstasy.
The DEA is currently considering a recommendation by Biden’s Health and Human Services Department to reclassify marijuana as a Schedule III drug, which is an important step but would not be complete decriminalization, Wexler said.
Small amounts of marijuana have been legalized for recreational use in 23 states, two territories and D.C.
“There are still lots of people who are going to jail for cannabis crimes, which is unfortunate,” Wexler said. “It’s moving towards rationality… but we’re not there yet.”
Contributing: The Associated Press
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