The Forgotten Majority: Biden’s Marijuana Possession Pardon

On October 6, 2022, President Biden announced that he is pardoning any individual with a simple marijuana possession charge on a federal level. The White House estimates this will affect about 6,500 people with prior federal convictions, none of whom are known to be incarcerated. This makes great strides toward federal decriminalization of marijuana, however, the pardon avoids the majority of individuals that are affected by marijuana possession charges.

The FBI reported that in 2021 170,856 individuals were arrested for marijuana possession in the United States. Of those charged at the federal level, non-citizens comprise the majority. Data from the US Sentencing Commission notes that in 2021, 72% of federal offenders of marijuana possession on a federal level were non-citizens. A marijuana possession charge has large implications on immigration status: individuals convicted of marijuana possession are unable to obtain a green card at any point in their life. Application with such a charge on a record will result in denial. Once denied, for this reason, an individual would be ineligible for a waiver and would continuously get denied thereafter. Although the progress resulting from the pardon cannot be discounted, it forgets those that are paying the most severe costs for possession.

Moreover, this pardon does not extend to service members. Those charged with marijuana possession while active-duty military are offenders of the Uniform Code of Military Justice, potentially resulting in punishment in the form of dishonorable discharge or forfeiture of pay. Large-scale Uniform Code of Military Justice alterations would require Congressional intervention, thus inhibiting Biden’s power to pardon these individuals.

State-level offenders remain the largest group of individuals disregarded. For example, In 2019 in the state of Colorado, it was reported that 3,265 people were arrested for marijuana possession. Unlike other states, Colorado has seen a drop in possession arrests due to the legalization of marijuana. In many states, the number of arrests remains high, and racial/identity disparities in these arrests are consistent with federal data. Given Biden’s pardon only affects marijuana possession charges at the federal level, individuals across the nation who are charged at the state-level remain unaffected.

Despite the positive benefits this pardon offers to the 6,500 federal offenders, it does not protect individuals from being charged in the future and does little to change disproportionate rates of arrests. Data provided by the ACLU gathered from 2010-2018 shows that Black populations are 3.64 times more likely to be arrested for marijuana possession than white populations, despite similar usage trends between the groups. A plethora of data also shows that Black individuals are more likely to be charged with any crime. The haste and quantity at which charges are filed contribute to The Prosecutor Problem, which increases the likelihood of being charged with multiple crimes. 

Despite the commonality to which it occurs, individuals charged with multiple crimes do not qualify for the pardon. Marijuana charges at the federal level are likely to be accompanied by other charges. When subtracting non-citizens, service members, state-offenders, and multiple-charge offenders from those eligible for the pardon, the population that remains is small in comparison to 2021 possession arrests and microscopic in comparison to possession arrests since 2000. Small steps are crucial to the progress of our country, but when the narrative does not account for those who are overlooked, the progress remains superficial and disparate.

To learn more:

• FBI Crime Data Explorer
• USSC Interactive Data Analyzer
• Impacts of Marijuana Legalization in Colorado 2021
• ACLU: A Tale of Two Countries

If you’re in Colorado and are being charged with a drug crime, including those related to marijuana possession, contact Krizman Law for a no-cost review of your legal case. We will put our years of expertise providing relentless criminal defense in Denver to work for you.