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Potential Speedbumps Loom for Biden Marijuana Pardons

On November 16, 2022, the Congressional Research Service released a report about the limitations of President Joe Biden’s recent pardon for simple marijuana possession offenders. The report also contains an analysis of cannabis reform actions at the state and federal levels.

The Congressional Research Service (CRS) explained two essential marijuana regulation developments occurring this fall, including the clemency action taken by President Biden and associated cannabis scheduling reviews. The CRS also mentioned the ballot initiatives in five states for legalizing marijuana.

Before detailing the limitations of Biden’s pardons, CRS discussed the disparity between state and federal marijuana regulation. Although observers might believe the grant of clemency is a monumental change in federal policies, a significant gap exists between federal and state-controlled substance laws.

However, the report explains a congressional spending bill rider helps to mitigate federal prohibition. The rider restricts using federal funds and prosecutorial discretion to enforce cannabis laws.

CRS discussed methods of closing the gap in cannabis policies. In particular, an administrative action initiated by Biden last month advising a scientific review of the Schedule I controlled substance classification of marijuana by multiple agencies. A review might result in recommendations of removing cannabis from the Controlled Substances Act or putting it on a less restricted schedule.

Limitations in Biden’s Mass Pardon Announcement

Last month, President Biden announced mass pardons for federal marijuana possession convictions. He pardoned approximately 6,500 people who committed a federal crime related to marijuana possession or violated Washington, D.C., marijuana laws.

CRS discovered at least six limitations in the President’s announcement, including:

  • The pardon doesn’t apply to anyone convicted of cannabis possession at the state level.
  • The pardon applies only to people convicted of simple marijuana possession. Anyone who committed other offenses related to marijuana, such as distribution, possession with the intent to distribute, or manufacturing, isn’t eligible for a pardon.
  • The pardons exclude non-citizens who were illegally in the U.S. at the time of their arrest.
  • The announcement includes offenses committed on or before October 6, 2022. However, it doesn’t prevent future convictions for simple marijuana possession unless the administration adopts different policies.
  • The pardon doesn’t necessarily remove all legal penalties someone convicted of simple marijuana possession can face.
  • The status of marijuana under federal law does not change despite the pardon.

Despite these limitations, some commentators described the pardons as a noteworthy development in national policies for marijuana reform. Others are concerned about the negative impact of the pardon on individuals who committed serious offenses but pled guilty to simple possession. Minimizing control over marijuana could increase criminal activity.

Developments in Marijuana Reform at the State Level

The CRS report discussed developments in state-level marijuana reform. Specifically, it mentioned the votes on legalizing adult-use marijuana in five states in the most recent election. Although North Dakota, South Dakota, and Arkansas voted against marijuana legalization, Maryland and Missouri approved the measures.

The report says numerous states have repealed criminal prohibitions on recreational and medical cannabis use in recent years. Proposals for legalizing marijuana have appeared on state ballots and in state legislatures regularly despite a previous failed attempt to pass new laws. Successful attempts at marijuana legalization have changed the legal landscape significantly.

All states with ballot measures, including legalizing recreational marijuana, previously passed laws allowing adults to use marijuana for medical purposes. Although three states voted against marijuana legalization for recreational use in the most recent election, medical marijuana is still legal.

Marijuana Regulation in the Federal Government

CRS discussed some options Congress can utilize for reforming federal cannabis laws. Some lawmakers have filed proposals addressing how the government regulates cannabis and methods to change the current regulations. One specific example is the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act, passed by the House in April this year.

The MORE Act seeks to abolish federal penalties for marijuana possession, distribution, and cultivation. If passed by the Senate, the Act will impact three significant aspects of marijuana decriminalization, such as:

  • Eliminate criminal penalties for cannabis-related offenses at the federal level
  • Remove cannabis from the Controlled Substances Act
  • Expunge previous federal cannabis convictions

The Biden-Harris Record

The White House launched a webpage about the administration’s major achievements as Biden approaches the end of his second year in office. The Biden-Harris Record outlines President Biden’s various actions to decriminalize marijuana in the United States.

The Director of National Drug Control Policy, also called the drug czar, praised the President’s historic move in pardoning marijuana possession offenders and directing a review of the drug’s classification in the Controlled Substances Act. The Director mentioned Biden’s efforts in highlighting the benefits of cannabis for medical use.

Marijuana could soon be legal under federal law. The Justice Department and the U.S. Department of Health and Human Services (HHS) committed to a review of the drug’s classification, possibly leading to cannabis moving to a lower schedule or being removed from the drug schedules entirely.

After receiving the President’s directive, the HHS Secretary stated officials would work as quickly as possible to analyze cannabis scheduling.

A spokesperson from the Department of Justice also said they plan to administer Biden’s proclamation efficiently to pardon anyone engaged in simple marijuana possession and restore civil, political, and other rights to convicted offenders.

The Labor Secretary for the U.S. Department of Labor addressed the pardons, saying officials will work diligently to ensure anyone who committed a federal marijuana offense and receives a pardon won’t face restrictions while seeking job opportunities in the future.

Support for Marijuana Reform

Last month, Vice President Kamala Harris urged voters to elect lawmakers who support reforming marijuana laws to allow Congress to enact more uniform legislation.

Multiple polls found Americans strongly support the President’s decision to pardon cannabis possession offenders. They also believe marijuana shouldn’t be anywhere on the controlled substances schedule.

Shortly after Biden announced his plans to pardon marijuana offenders, the U.S. Senate approved the Medical Marijuana and Cannabidiol Research Expansion Act. The bipartisan bill was initially introduced in July. It passed the House before passing the Senate, marking the first time a stand-alone cannabis bill passed both chambers of the U.S. Congress. A White House spokesperson confirmed the President plans to sign the bill.

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