Presidential Pardon of Marijuana Possession: Users Beware

Last week, criminal justice advocates celebrated as President Joe Biden granted a pardon for individuals who have violated federal or D.C. law regarding simple possession of marijuana. While the announcement was a welcome step forward, it did not decriminalize marijuana on the federal level. And, importantly, the pardon does not apply to every person who has been convicted of a marijuana offense.

First, President Biden’s October 6, 2022, pardon only applies to 1) United States citizens and 2) lawful permanent residents. Persons present in the United States on a temporary visa or present illegally are not included.

Second, the pardon only applies to persons who have committed this offense — whether they have been charged or not — on or before October 6, 2022. Anyone who violates these laws today will not get the benefit of this pardon. Although President Biden has asked for the attorney general to review how marijuana is classified, for now, marijuana remains illegal for all purposes and in all places under federal law. Therefore, it is important to remain vigilant about where you are using marijuana — national parks, for example, are federal land and state laws permitting recreational use of marijuana do not apply.

Third, the pardon only involves persons who have violated federal law 21 U.S.C. 844 or District of Columbia Code 49-904.0(d)(1), for simple possession of marijuana. This federal offense is rarely charged. Persons who were convicted of possession with intent to distribute, conspiracy to distribute, possession of a firearm in furtherance of a drug offense, or other more serious offenses are not included in the pardon. Similarly, President Biden has no power to pardon persons convicted of these offenses under similar state laws.

Finally, it is important to remember that this presidential pardon will not remove the arrest or conviction from an individual’s criminal record. Only an expungement can clear someone’s criminal record. Expungement of a federal crime cannot be granted by the president. That is solely a judicial remedy and one that is rarely granted by the court.

The attorney general has been tasked with developing an application procedure to receive a certificate of pardon for those who qualify for the pardon. If you have questions about the pardon, and whether it may apply to you, please contact Madelaine Lane or a member of Warner’s White Collar Criminal Defense Practice Group.