What the Presidential Marijuana Order Really Means

Biden weed pardons

On Friday morning, President Joe Biden announced that he would be extending pardons to all Americans convicted of “simple possession and use of marijuana under federal and D.C. law,” as well as commuting the sentences of 11 people serving “disproportionately long” drug sentences. 

The move is the latest step in Biden positioning himself as perhaps the most cannabis-friendly president in history — a true about-face from his previous stance as a pro-prohibition lawmaker. (Last October he issued a similar order pardoning some lower-level cannabis offenders, and in August, recommended that the DEA reschedule the drug.) While the order is “fairly light on specifics,” says Paul Armentano, the deputy director of the National Organization for the Reform of Marijuana Laws (NORML), it’s a big development nonetheless. “It’s terribly important to have the president acknowledging that nobody should be arrested or in jail for marijuana,” he tells Rolling Stone. “Biden is the first president to come out and publicly state that position, and do it so clearly.”

So what does this decision mean? “I think the main takeaway is [that] this issue of marijuana policy reform, [which] for decades was viewed as a fringe issue, has been elevated to a mainstream issue,” says Armentano. “Having the president of the United States making it clear that no Americans should be in jail for the responsible use of mairjuana is vindication for those of us that have been advocating for legalizing and regulating marijuana for the last five decades.”

Brian Vicente, founding partner of Vicente LLC, a Colorado legal firm specializing in cannabis law, agrees. “I think it’s massively important,” he says. “You can look at it through the context of the positive steps [Biden has] taken on cannabis reform — re-scheduling, other rounds of pardons — acknowledgement by functionally the most powerful person in the world saying cannabis isn’t as bad as we thought, people shouldn’t have negative effects following them around.”

But more than a symbolic move, the announcement will have some real-world effects. We spoke with experts to pin down what will — and won’t — change as a result of this presidential decree. 

The Pardons Won’t Be Automatic 

As president, Biden only has the power to pardon offenses — i.e., forgive them — not expunge them from an individual’s record. And while the pardons aren’t automatic, the good news is that the Department of Justice set up a portal last March to assist people with simple marijuana convictions obtain a Certificate of Pardon — basically, a piece of paper proving that this new proclamation applies to them. “The people who would qualify have to fill out an application, and once that’s done, they should have a pardon issued to them,” explains Morgan Davis, owner of Davis Legal, a boutique cannabis firm in Raleigh, North Carolina. “At that point they can potentially seek to have it removed. If it can’t be removed, [the certificate is] something they can show in the event that it pops up on their record.”

This mostly applies to those with convictions on federal land, and not within the District of Columbia, because, as Armentano points out, D.C. — which legalized cannabis in 2015 — already enacted a law earlier this year that automatically reviews and expunges any convictions for offenses that would be admissible under current district law. 

A Conviction Might Still Come Up

Part of the problem with a federal cannabis conviction is that it can potentially prevent someone from accessing federal programs (like housing) and can count against them in federal applications (like for security clearance). “I can’t underplay the importance of not having a criminal drug conviction on your record,” says Vicente. “It helps in employment, helps in housing, you see it with student loans, applying for gun permits — so this is a significant positive move for those individuals who have them.” Those in the medical field, or who work with children, a drug conviction could also bar you from employment. “They’re not going to take the liability,” explains Davis. 

A pardon would change that. “’It will still appear on the records, but it’ll say ‘presidential pardon,’ [which] will send a message,” says Vicente. “So [there] could be some stigma, but will be considerably less.” As attorney Alex Freeburg puts it, “a presidential pardon is a big deal.” When it comes to things like security clearance, though, attorney Mark Zaid, who often advises federal employees, says it’s not the only thing they’ll be looking at: “No doubt the pardon would be considered as a mitigating factor, but it is the pattern of activity that is relevant. So if the individual, once receiving a pardon, still continues to use marijuana in violation of federal law, that would be a factor adversely taken into consideration by an agency.”

It’s Still Federally Illegal 

Just because Biden pardoned past convictions doesn’t mean more convictions won’t come in the future. That means you should still probably avoid bringing cannabis to places like national parks or other federal lands (think the National Mall or the Statue of Liberty). “Possession or use of marijuana inside a national park is prohibited,” a spokesperson for the National Park Service tells Rolling Stone. “While some states provide for regulated possession and use of marijuana, it remains an illegal drug under federal law and enforced within all national parks.” However, according to Freeburg — who, working in criminal defense in Wyoming, has seen cases in Yellowstone and Grand Teton National Parks — arrests in the past several years have plummeted, and while citations for possession are more standard at this point, often nothing will come of it at all. “Usually where I see it, it corresponds to another event — [like] trespass[ing with] weed in your pocket,” he says. “It’s rare for there to be a standalone pot charge.” 


States Are Leading the Way

Armentano notes that while Biden’s announcement is important from a symbolic perspective, it’s the states that are actually doing the most to expunge past convictions — which is good, since that’s where most of the convictions for personal-use possession or consumption happen. “Over the last five years, [states] have been engaging in mass expungements of criminal marijuana related convictions. We’re talking about over 2 million Americans who have had marijuana convictions wiped off the books,” he says. He notes that the fact that Biden added to his announcement a plea to state governors to pardon these offenses shows that even the administration might not be aware of the progressive work being done at the state level. “We as a society have already changed the way we think about marijuana,” he says. 

It’s on Congress to Fully Decriminalize 

Marijuana is a Schedule I drug, alongside substances like heroin and LSD. Earlier this year, Biden’s Department of Health and Human Services issued a recommendation to the Drug Enforcement Agency, which controls the drug schedule, to move it to Schedule III, the same as ketamine and Tylenol with codeine. That wouldn’t entirely legalize it — it would still be illegal, per the federal criminal code — but it would make things like tax breaks, interstate commerce, and banking more accessible to cannabis companies. It’s on Congress to decriminalize federally. The States Reform Act, a bipartisan bill aimed at decriminalizing cannabis and building a federal framework so states could regulate it like alcohol, was introduced for a second time in October. It didn’t make it to a vote in the previous session, but other bills have come closer: In both 2020 and 2022, under Democratic leadership, the House of Representatives passed the MORE Act, which would have decriminalized cannabis under federal law. While the bill never made it to a vote in the Senate, Democrats reintroduced it to the House in September. Until actual decriminalization comes, though, we can only move so far. “The issue is,” says Davis, “if we’re continuing to arrest people for it, have we really made a difference?” 

Source link: https://www.rollingstone.com/politics/politics-features/biden-weed-pardon-presidential-order-meaning-1234935458/

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