President Joe Biden issued a proclamation granting pardon for the offense of simple possession of marijuana on Oct. 6. So, what exactly does this mean and how many people are benefitting? Despite what it sounds like, it’s important to understand that this isn’t getting anyone out of jail. According to the White House and a report from the U.S. Sentencing Commission, there is no one currently in federal custody for simple possession of marijuana. On the bright side, this bold act of clemency is a step in the right direction of beginning to decriminalize marijuana, an offense that people of color are disproportionally convicted for.
Civil Rights Restored
Those who are eligible will have their civic rights, like voting or serving on juries, restored, but only if the possession charge is the only felony on their record. Note that only expungement can actually erase convictions from a person’s record. The pardon applies only to citizens and lawful permanent residents and does not extend to people found guilty of intent to distribute. Many immigrants’ rights advocates oppose this notion as non-citizens make up a substantial proportion of people convicted of simple possession for many years though those numbers have dropped drastically in recent time. According to data from the Sentencing Commission, in 2015, there were over 1,600 non-citizens convicted of marijuana possession while there were just six in 2021.
State vs. Federal
The kind of policing that leads to drug possession arrests usually happens at the state level as opposed to the federal level. Federal law enforcement is tasked with drug possession matters usually only in the context of interstate travel and specific places under federal control. There are at least 6,500 people with prior marijuana possession convictions on their records who may benefit from the pardon who have been convicted at the federal level, but the real potential for impact will come from state legislatures following Biden’s lead. If state governors decide to approve similar pardons, some estimates indicate that it would affect about 30,000 people nationwide who are behind bars for state marijuana possession crimes.
This is where state governments start to run into some issues. A number of states have bureaucratic limits on pardon power. For instance, several states would require their pardon boards to grant approval in each individual case, so it would take a long time before the type of mass pardon Biden is asking for to take effect.
Biden also called for a review of the classification of marijuana under federal law. Currently, it’s as a Schedule 1 substance along with heroin and LSD, considered to have no medical use and a high likelihood for abuse, putting it in the most restricted group of drugs. Despite this, 37 states now allow medicinal weed, and another 19 plus Washington D.C. have legalized adult recreational use. Changing the classification has the potential to have a much larger impact on the justice system than Biden’s pardons as it would indirectly help address underlying issues as well as resulting ones such as mass incarceration and overcrowding of prisons.
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