Congressional researchers released a report on Wednesday that provides a point-by-point overview of the limitations of President Joe Biden’s mass marijuana pardon, as well as broader analysis on recent state and federal cannabis reform actions.
The Congressional Research Service (CRS) described the “two key developments in federal and state marijuana regulation” that have taken place this fall, including the president’s clemency action and related cannabis scheduling review, as well as votes on legalization ballot initiatives in five states, two of which passed the reform.
“While some observers consider President Biden’s grant of clemency to represent a significant change in federal marijuana policy, as a legal matter it did little to alter the growing disparity between federal and state marijuana regulation,” CRS said before detailing its limitations.
“Marijuana regulation is one area where the gap between federal and state controlled substance laws is particularly salient,” the report says. It explains, however, that federal prohibition has been mitigated by a congressional spending bill rider that puts restrictions on the use of federal funds for cannabis enforcement, as well as prosecutorial discretion that’s been exercised.
CRS said that there are other means of closing the policy gap, including through administrative action that Biden initiated last month by directing multi-agency scientific review of marijuana’s current Schedule I status. That review could hypothetically return a recommendation to place cannabis in a lower schedule or remove it from the Controlled Substances Act (CSA) altogether.
In the meantime, Biden has moved to pardon about 6,500 people who’ve committed federal marijuana offenses, as well as those who’ve violated the law in Washington, D.C. But as CRS pointed out, there are at least six major limitations to the relief.
First, the president’s isn’t able to pardon people with cannabis convictions at the state level, where more marijuana cases are prosecuted. Biden did encourage governors to take steps to provide relief to those individuals, but congressional researchers noted that there are states where “governors cannot independently grant clemency.”
“Second, the pardon applies only to simple possession of marijuana, not to other marijuana-related CSA offenses such as manufacture, distribution, or possession with intent to distribute or to other federal crimes,” the report says. “Federal prosecutions of simple possession of marijuana are relatively uncommon.”
Activists with Students for Sensible Drug Policy (SSDP), Last Prisoner Project (LPP) and DCMJ staged protests outside of the White House last month to call attention to that issue, demanding that Biden release the estimated 2,800 people currently in federal prison for marijuana convictions that aren’t limited to simple possession.
Third, CRS said the presidential clemency is also limited by the fact that non-citizens with cannabis possession records were specifically excluded from pardons—an issue that’s been identified by numerous advocacy groups and lawmakers.
For example, nine congressional lawmakers sent a letter to Biden on Monday, imploring him to extend his pardons include immigrants who have citizenship status issues. They are also urged him to “prioritize” decriminalization or descheduling.
Rep. Alexandria Ocasio-Cortez (D-NY) previously called for an expansion of the president’s pardons, stressing the importance of having a Democratic Party that proactively stands up for Latino communities, including the immigrant population. Part of that means enacting inclusive policies, she said, which was a missing element of the president’s mass cannabis pardon.
Earlier this month, more than 130 immigrations and civil rights organizations sent a letter to Biden, similarly imploring him to extend his marijuana possession pardon proclamation to anyone regardless of immigration status.
Fourth, CRS additionally explained that “the pardon applies only to offenses committed before the proclamation,” and while the Justice Department is “currently not prioritizing prosecuting low-level marijuana offenses, the October 2022 pardon does not prevent prosecution of future offenses if the current Administration or a future Administration adopts a different policy.”
“Fifth, the pardon may not remove all legal consequences of marijuana possession, because it does not expunge convictions,” the report says. “Moreover, some collateral consequences of marijuana-related activities do not depend on a person being charged with or convicted of a CSA violation.”
Biden has been routinely touting the pardon action, and at one point he erroneously suggested that he did facilitate expungements to seal a person’s record altogether, rather than simply pardoning them and providing formal forgiveness with fewer practical implications.
Relatedly, a key House committee did approve a series of criminal justice reform bills in September—including bipartisan proposals to clear records for prior federal marijuana convictions and provide funding for states that implement systems of automatic expungements.
Sixth, “finally, and most fundamentally, the pardon does not change the status of marijuana under federal law,” CRS said. “The President lacks the power to make such a change unilaterally.”
“Notwithstanding the foregoing limitations, some commentators have described the October 2022 pardon as a significant development in national marijuana policy that may restore some civic rights to those who benefit from it. Some have expressed concerns that the pardon might benefit offenders who committed more serious offenses but pleaded guilty to simple possession or that relaxing controls on marijuana may generally lead to an increase in crime. Others advocate for further pardons, expungements, and legal reforms to decriminalize marijuana.”
The CRS report goes on to discuss state-level reform developments, specifically last week’s votes on adult-use legalization at the ballot in five states. Maryland and Missouri approved the measures, while those in Arkansas, North Dakota and South Dakota were defeated.
“Recent years have seen numerous states repeal criminal prohibitions on medical and recreational marijuana use. Despite some failures, marijuana legalization proposals have regularly appeared in state legislatures and on state ballots and, where successful, have significantly changed the legal landscape,” the report says. “That trend continued in the 2022 elections.”
“All of the states where voters considered recreational marijuana ballot measures in November 2022 had previously enacted laws authorizing the use of medical marijuana,” it continues. “Medical marijuana laws remain in effect in the three states where voters declined to adopt recreational marijuana measures.”
Finally, CRS talked about options for Congress to build upon federal marijuana reform, noting that lawmakers have filed multiple proposals that would “change how the federal government regulates marijuana,” including the House-passed Marijuana Opportunity, Reinvestment and Expungement (MORE) Act.
“Congress has broad power to regulate marijuana or relax federal regulation of the substance as part of its authority over interstate commerce,” CRS said.
The congressional research agency published a separate report the day after Biden issued the pardon proclamation that explained the implications of marijuana being classified as a Schedule I drug under federal law and also laid out options for Congress to change that.
Meanwhile, as the end of Biden’s second year in office approaches, the White House recently launched a webpage looking at “The Biden-Harris Record” that lists 17 major administration achievements, which includes “ending our failed approach to marijuana.”
The White House drug czar recently cheered Biden’s “historic” move to issue a mass marijuana pardon and direct an administrative review of the drug’s scheduling status. And he is again highlighting that there are “clearly” medical benefits of cannabis—which he says shouldn’t be ignored because of separate concerns about youth use.
The Justice Department and U.S. Department of Health and Human Services (HHS) have committed to quickly carrying out the separate scheduling review the president directed, which could result in a recommendation to place cannabis in a lower schedule or remove it altogether, effectively legalizing the plant under federal law.
HHS Secretary Xavier Becerra has said officials will “work as quickly as we can” to complete the analysis of cannabis scheduling per the president’s directive.
The Department of Justice, for its part, “will expeditiously administer the President’s proclamation, which pardons individuals who engaged in simple possession of marijuana, restoring political, civil, and other rights to those convicted of that offense,” a department spokesperson said.
Labor Secretary Marty Walsh said that officials will be working diligently to ensure that people who received a pardon for federal marijuana offenses under the presidential proclamation are not impeded from future job opportunities.
Vice President Kamala Harris said last month that voters should elect lawmakers who support marijuana reform so that Congress can enact a “uniform approach” to the issue in light of the president’s cannabis pardons.
A series of polls have shown that Americans strongly support the president’s pardon action, and they also don’t think that marijuana should be federally classified as a Schedule I drug.
Just weeks after Biden issued the mass marijuana pardon, the U.S. Senate on Wednesday approved House-passed bipartisan cannabis research bill. It marks the first time a standalone piece of marijuana reform legislation has ever been sent to the president’s desk.
Photo courtesy of Mike Latimer.