President Biden Pardons Federal Cannabis Possession Offenders

by Omar Figueroa

October 6, 2022

United States President Joe Biden announced today a Statement on Marijuana Reform which included the mass pardon of thousands of persons convicted of the federal offense of simple possession of cannabis.  President Biden also urged state Governors to follow his lead by issuing mass pardons of state possession offenses.  Finally, the President directed Attorney General Merrick Garland and Secretary of Health and Human Services Xavier Becerra to initiate an expeditious review of how cannabis is scheduled under federal law, noting it does not make sense that cannabis is Schedule I while methamphetamine and fentanyl, drugs driving our overdose epidemic, are Schedule II.

The Statement on Marijuana Reform can be found in the White House Briefing Room:

As I often said during my campaign for President, 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. Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities.  And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.

Today, I am announcing three steps that I am taking to end this failed approach.

First, I am announcing a pardon of all prior Federal offenses of simple possession of marijuana.  I have directed the Attorney General to develop an administrative process for the issuance of certificates of pardon to eligible individuals.  There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result.  My action will help relieve the collateral consequences arising from these convictions.

Second, I am urging all Governors to do the same with regard to state offenses.  Just as no one should be in a Federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either.

Third, I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.  Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances.  This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic.

Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.

Too many lives have been upended because of our failed approach to marijuana.  It’s time that we right these wrongs.

The White Briefing Room also has a Proclamation on Granting Pardon for the Offense of Simple Possession of Marijuana.  This proclamation explains the exact criminal offense to which the pardon applies [“the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1)”], the persons to whom it applies [“current United States citizens and lawful permanent residents” but not “individuals who were non-citizens not lawfully present in the United States at the time of their offense”], and the mechanism for those who qualify to obtain a certificate of pardon:

 Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Joseph R. Biden Jr., do hereby grant a full, complete, and unconditional pardon to (1) all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1), on or before the date of this proclamation, regardless of whether they have been charged with or prosecuted for this offense on or before the date of this proclamation; and (2) all current United States citizens and lawful permanent residents who have been convicted of the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1); which pardon shall restore to them full political, civil, and other rights.

My intent by this proclamation is to pardon only the offense of simple possession of marijuana in violation of Federal law or in violation of D.C. Code 48–904.01(d)(1), and not any other offenses related to marijuana or other controlled substances.  No language herein shall be construed to pardon any person for any other offense, including possession of other controlled substances, whether committed prior, subsequent, or contemporaneous to the pardoned offense of simple possession of marijuana.  This pardon does not apply to individuals who were non-citizens not lawfully present in the United States at the time of their offense.

Pursuant to this proclamation, the Attorney General, acting through the Pardon Attorney, shall administer and effectuate the issuance of certificates of pardon to eligible applicants who have been charged or convicted for the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1).  The Attorney General, acting through the Pardon Attorney, is directed to develop and announce application procedures for certificates of pardon and to begin accepting applications in accordance with such procedures as soon as reasonably practicable.  The Attorney General, acting through the Pardon Attorney, shall review all properly submitted applications and shall issue certificates of pardon to eligible applicants in due course.

IN WITNESS WHEREOF, I have hereunto set my hand this sixth day of October, in the year of our Lord two thousand twenty-two, and of the Independence of the United States of America the two hundred and forty-seventh.

                               JOSEPH R. BIDEN JR.

Notably, the language of the pardon proclamation is extremely broad, and grants a “full, complete, and unconditional pardon” to United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana “regardless of whether they have been charged with or prosecuted for this offense.”  This sweeping relief potentially affects millions of Americans who have committed the federal offense of simple possession of marijuana and have not been charged with or prosecuted for this offense.

While this largely symbolic act is good news for persons who committed low-level cannabis possession offenses, it provides zero relief to nonviolent persons convicted of felony offenses such as possession with intent to distribute, conspiracy and cannabis cultivation.

Similarly, President Biden’s act of executive clemency provides zero relief for federal cannabis prisoners currently serving time in federal prison, such as Luke Scarmazzo, who was sentenced to a mandatory minimum sentence of twenty years for operating a state-legal medical cannabis dispensary in California.  Mr. Scarmazzo is currently incarcerated at taxpayer expense in a medium security federal prison in southern Mississippi named FCI Yazoo City Medium with a release date of March 14, 2027.

Mr. Scarmazzo has suffered behind bars for too long, and President Biden should order him released on a grant of executive clemency so Mr. Scarmazzo can go back to his family and be reunited with his daughter.