What Is the Significance of President Biden’s October 2022 Pardons of People with Non-Violent Federal Marijuana Possession Convictions?

In October of 2022, US President Joe Biden pardoned approximately 6500 people with convictions for possession of marijuana. There has been substantial public and private discussion of the significance of these historic pardons. Generally one of two positions is propounded. One point of view, POV, is that the pardons are a tremendously significant and important step in the struggle to legalize cannabis including marijuana. The other POV is that the pardons are but a very small step in the legalization road, and do not go nearly far enough. Both are substantially correct. The pardons are of great significance in the ongoing effort to legalize marijuana nationally and at a state level. Pardons in general, while removing the conviction, leave the public record of the conviction. 

Presidential pardons are directed at federal convictions and prosecutions only. They can be granted at any time before, during, and after charges are initiated. Most marijuana are STATE cases and convictions, not federal. The feds usually don’t pursue marijuana possession cases unless they involve very large amounts of marijuana. Federal cases for possession of small amounts of marijuana arise, for example, in national parks. Visitors are caught with a joint or an ounce of marijuana on the federal land which is park, and given a federal “ticket” for possession. Small quantities of marijuana are discovered in the US mail, and the postal inspector initiates charges. Federal marijuana cases generally involve very large quantities of plant or extract, allegations of conspiracy, allegations dealing, or charges for activities involving other controlled substances. Quantities frequently are in excess or far in excess of hundreds of pounds of marijuana hundreds, with hundreds of pounds being at the very low end of what garners federal attention, let alone federal prosecution. Cases which do not involve other controlled substances like heroin, methamphetamine, fentanyl, and more, are the exception. 

State marijuana cases might range from very small amounts, a single bud, joint or even residue, to hundreds and even thousands of pounds. Distribution, sale, manufacturing, (growing or extractions) and conspiracy are frequently included in the allegations.  

State cases in some states offer options at the case conclusion ranging from expungement, the complete destruction of records of the case, to automatic sealing, limiting access to the completed case.  

President Biden issued the federal pardons 3 weeks before the national midterm election. Many note or complain that the pardons are intended to help Democratic candidates in the midterm elections. This includes races ranging from local commissioners, mayors, district attorneys, judges, to governors. “Midterm” refers the fact that it is midway between presidential elections, which we know are held every four years. Midterms are 2 years into a president’s term, and 2 years before the next presidential election. President Biden is not himself up for re-election, nor is anyone able to run for president, with the upcoming presidential election scheduled for 2024.  

Currently, nearing the end of the year 2022, approximately 70% of all voters favor legalization. This includes significant numbers of Republicans, Independents and unaffiliated (no party declared) voters.  Nearly 2/3 of voters support the pardons. 

On the positive side, the pardons may well influence the midterm votes of not only Democrats, but of the entire electorate, to the benefit of Democratic candidates at all levels, state and federal.  

The pardons are the fulfillment of a Presidential campaign promise made 2 years ago, before the 2020 national federal presidential election, when President Biden defeated candidate Trump.  

By waiting 2 years to fulfill the promise, albeit with “suspicious” timing, President Biden gained another advantage of tremendous importance. The 2 additional years provided the experience of two more years with legalization accomplished by a number of states. The 2 years might have included very good or great consequences and benefits, as proved to be the case. What did not happen are an increase in underage usage.  

What did not happen is virtually anything negative, contrary to the “sky will fall” predictions of anti-legalization challengers.  Underage marijuana usage declined and did not increase. The illegal sellers and distributors as well as those “in the business” of dealing marijuana were dealt a huge blow. Our 2 years of legalization at the state level generally provided completely laudable results. The targeting of POC (people of color, non-Caucasians) for possession of marijuana in legal states was made into part of history, virtually eliminated from current and future reality. State level pardons, expungements, and sealings became far more common because of the federal encouragement.    

Had the experience of the last 2 years been anything ranging from troublesome to truly horrific, President Biden had the chance to say that he had changed his mind for reasons with which we all would have likely been aware.  

The timing set President Biden up for the win-win scenario in which his actions could provide the Democrats with an election boost in either case. He could “do the right thing” whether that was to pardon or to not pardon. He could keep his campaign promise or have a good reason to acknowledge the promise while choosing to not fulfill it, and still come out in supports of the 2022 democratic midterm candidates. 

Biden had been historically strongly anti-drugs, including marijuana. His publicly voiced opposition of thirty to forty years made him an anti-drug crusader. The pardons were a way to demonstrate that his history did not define him as an anti-marijuana crusader. He had instead become a supporter of legalization. After the pardons were issued, Biden took the additional step and encouraged the states to follow suit.  

Of tremendous significance generally overlooked is that a presidents power and authority  simply did not and does not include much of what legalization efforts demand. A president generally cannot simply as president do more than grant pardons in federal cases. A president cannot pardon people in state cases, just as the president cannot dismiss, expunge, or seal state cases. He CAN and DID encourage the states to do those very things, and this has tremendous positive impact in an area where he otherwise cannot act.  

At the federal level he cannot pass new laws at all. That is the job of the legislative branch of government. He can however encourage congress to pass legalization laws, to repeal older laws, to deschedule or reschedule marijuana, removing it from being on the list of Schedule 1 controlled substances. Currently it is rated, as a Schedule 1 controlled substance, being as dangerous as and subject to abuse as the most dangerous drugs. Whether or not the other schedule 1 drugs should also be legalized, regulated and taxed is a discussion for another day and another blog. 

He has in fact, by granting the pardons, encouraged the passage at the federal level of the MORE act and the SAFE act. These are directed at such issues as permitting banking to be more accessible to the legal marijuana trade. Cash for everything from purchasing an 1/8th ounce to paying federal taxes is currently the only option in many situations. I note that federal tax payments which previously had to be made with literally wheel barrows of cash can now frequently be paid by alternative methods not requiring cash. The benefits of permitting banking for the legal marijuana businesses is quite important. Forcing so much of legal business to be done in cash screams out for an increase in crimes related to the large sums of cash involved. That is currently the lay of the land in legal states. While banks have some latitude to work with the legal canna-businesses, the requirement federally and at a state level are prodigious. That has led virtually all banks to simply avoid involvement.  

It is readily apparent that the presidential pardons, albeit of only 6500 people of the hundreds of thousands subject to marijuana prosecution, is of huge significance. The benefits far outweigh the negatives. Most of the issues which have led to the denigration of the Presidential action are demanding actions which are simply impossible for a president to do unilaterally. A president can and did exert tremendous influence and show support from the highest office in the land for federal and state legalization efforts. That action should be praised and praised vocally everywhere from the “pages” of newspapers to the floors of legislative bodies to, as is the hope of our current President, the ballot boxes of the November 2022 midterm elections.  

Lenny Frieling was interviewed on this topic by Will Brendza for Boulder Weekly. The interview will appear in a late October issue on line and in print. The link will be shared here as soon as it is available.  Thanks for visiting! Comments can be sent to Lfrieling@Lfrieling.com with “pardon comments” in the subject line. Comments are generally not posted.