Biden Administration Extends Cannabis Pardons

President Joe Biden made headlines last year when he announced he was granting pardons to those convicted of federal simple possession of marijuana offenses. He encouraged state governors to do the same, saying that it was a move meant to help relive the struggles thousands of Americans face when looking for housing and work with a federal drug conviction on their record. In his original statement, the President said, “No one should be in jail just for using or possessing marijuana. Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit.”

President Biden is following up on last year’s announcement with a new proclamation, expanding on his previous announcement. This round of federal pardons targets “additional offenses of simple possession and use of marijuana under federal and D.C. law.” Many of these marijuana offenses are related to the use and possession of specific Federal lands not covered by the 2022 proclamation. 

What does this proclamation do for those convicted of a federal marijuana offense? Are there limitations to the power of this new Presidential proclamation?

New Year, New Marijuana Policy?

The new proclamation issued by President Joe Biden expands his original announcement by issuing pardons for those convicted of additional simple possession and use of marijuana offenses under both federal and Washington, D.C. law. Like his previous announcement, he called on state governors to do the same and said that no individual should be in prison “solely due to the use or possession of marijuana.” The President is also moving to commute the prison sentences of at least 11 people convicted of non-violent drug offenses. Some of those individuals received mandatory life sentences for their crimes under harsh drug penalty laws.

The move comes as the Drug Enforcement Administration continues to consider a recommendation from the Department of Health and Human Services to reschedule cannabis from a Schedule I illegal substance to a Schedule III substance.

Limitations of the Proclamation? 

Although many Americans and cannabis advocates praise President Biden for taking proactive steps to reform cannabis policy in the country, others point to the limitations of the new proclamation. For example, the new cannabis-focused pardons do not apply in specific circumstances. Individuals who were non-citizens at the time of a marijuana offense are not eligible for a pardon. Likewise, individuals convicted of possession of marijuana with intent to distribute or those with marijuana-related impaired driving offenses cannot be given a pardon under the new proclamation. 

Some advocates claim the President’s action on cannabis falls short, especially if the goal is to legalize medical or recreational cannabis federally. However, the President has no authority to make sweeping policy changes unilaterally. Laws must be passed by the legislative branch, and President Biden must also work within the constraints of negotiating with a divided Congress to take meaningful action reforming cannabis policy in the United States. 

Marijuana Policy in the Works 

One marijuana policy currently in the works is the SAFER Banking Act, which the Democratically held Senate is considering. In the works for years and previously called the SAFE Banking Act, this transformative legislation would give cannabis-related businesses access to banking and financial services. Hence, they would no longer rely on the unsafe “cash only” business model. Currently, banks and financial institutions can face stiff penalties for extending essential banking services to legitimate cannabis businesses run in states where it is legal to sell recreational cannabis. 

The newest iteration of the measure is currently moving through the Senate, where Democrats have been hopeful about the measure’s chances of passing. However, the fate of the bill would be uncertain in the Republican-controlled House. House Speaker Mike Johnson is staunchly conservative and anti-cannabis. His record shows that he has voted against cannabis reform measures in the past and would be unlikely to allow the SAFER Banking Act to make it very far in the House. 

President Biden cannot draft and pass cannabis reform measures. He must work with Congress to establish a meaningful cannabis reform policy. That is challenging with a Republican-held House that has consistently demonstrated it is not interested in propelling policy forward but seems more motivated to prevent critical legislation from passing. 

Expanding pardons through a Presidential proclamation is one way President Biden can demonstrate he is still committed to cannabis reform without relying on a divided Congress to get things done.

Rescheduling Marijuana Still on the Table 

Rescheduling marijuana from a Schedule I controlled substance to a Schedule III substance at the federal level is also still on the table. Recently, the Department of Health and Human Services recommended that the Drug Enforcement Administration consider making this move. While it is not the massive policy change many advocates were hoping to see, rescheduling marijuana could help remove significant barriers within the legal cannabis marketplace in certain states. For example, rescheduling marijuana could help allow legal, state-licensed cannabis businesses to claim federal tax deductions. Currently, cannabis businesses are barred from claiming business-related tax deductions thanks to IRS code 280e. 

Rescheduling marijuana federally may also help by lessening the potential criminal penalties for marijuana possession in states that have not yet moved to legalize recreational or medicinal cannabis. Again, while it may seem to some like a band-aid that fails to address the underlying wound of a failed policy, it is still one of the most significant attempts to fix the system we’ve seen at the federal level in decades. 

President Biden’s new cannabis pardon push may help remind voters that cannabis reform is still an issue that he is committed to resolving if re-elected to a second term and given the legislative muscle to push it through. With the help of a Democratically held Senate and House, he may be able to enact legitimate policy reform measures, something he doesn’t want voters to forget as they hit the polls next November.

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