The Justice Department and U.S. Department of Health and Human Services (HHS) say they will quickly act to follow President Joe Biden’s new directive to review marijuana’s federal scheduling status and process mass cannabis possession pardons.
Within an hour after the president made the surprise announcement, a DOJ spokesperson released a statement saying the department would abide by the cannabis directive in an expedited fashion.
“The Justice Department 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,” DOJ said. “In coming days, the Office of the Pardon Attorney will begin implementing a process to provide impacted individuals with certificates of pardon.”
Justice Department Statement on President's Announcements Regarding Simple Possession of Marijuana https://t.co/VLnDpPpOQR
— Anthony Coley (@AnthonyColeyDOJ) October 6, 2022
“Also, in accordance with the President’s directive, Justice Department officials will work with our colleagues at the Department of Health and Human Services as they launch a scientific review of how marijuana is scheduled under federal law,” the agency said.
HHS Secretary Xavier Becerra separately said in a tweet—posted as precisely 4:20 PM ET—that he’s “looking forward to working with Attorney General Garland to answer [Biden’s] call to action to review how marijuana is scheduled under federal law.”
— Secretary Xavier Becerra (@SecBecerra) October 6, 2022
In an question and answer page on the president’s move, DOJ gave some details on how the pardon process will work, noting that it “applies if the qualifying offense occurred on or before October 6, 2022, even if a conviction has not been obtained by that date.”
How can I prove that I have been pardoned?
Eligible persons may need proof that President Biden’s proclamation applies to them in order to achieve the full benefits of a pardon. The President has asked the Attorney General, acting through the Pardon Attorney, to issue those persons certificates to establish proof of pardon. The Office of the Pardon Attorney is currently working to develop procedures for issuing certificates of pardon to eligible individuals in the near future.
How can I get a certificate of pardon?
In the near future, the Office of the Pardon Attorney will make available a short application form for individuals seeking a certificate of pardon, along with instructions for completing the application. We will make this form available as quickly as we can. Please check back here soon for further announcements.
When can I apply for my certificate of pardon?
We cannot accept applications or issue certificates of pardon until our official procedures have been announced. We will update this page as soon as we have additional information to provide. We encourage you please to check https://www.justice.gov/pardon for additional guidance in the near future.
The department also clarified that in addition to not covering any state cannabis crimes, the proclamation doesn’t apply to people “who were convicted of possessing multiple different controlled substance in the same offense.”
“For example, if you were convicted of possessing marijuana and cocaine in a single offense, you do not qualify for pardon under the terms of President Biden’s proclamation,” it said. “If you were convicted of one count of simple possession of marijuana and a second count of possession of cocaine, President Biden’s proclamation applies only to the simple possession of marijuana count, not the possession of cocaine count.”
Biden separately called on governors to grant relief to people with low-level cannabis convictions at the state level, where the vast majority of Americans have been prosecuted over marijuana.
White House Office of National Drug Control Policy Director Rahul Gupta praised the president’s move.
“It is clear that our current marijuana laws have not worked, and that we need a new approach that balances science with criminal justice reform efforts,” he said in a statement. “The executive actions President Biden announced today are important and historic steps in our ongoing efforts to ensure that our drug policies are based on the best science and evidence available and that they will help make all our communities healthier and safer.”
.@POTUS is right: For too long, our approach to marijuana has upended too many lives, disproportionately devastating communities of color. Today's actions are important steps to advance equity in our Nation's drug policies.
— Rahul Gupta (@DrGupta46) October 6, 2022
Biden’s scheduling review—which will be conducted by DOJ and HHS—could reshape federal marijuana policy depending on the final recommendation. Biden has faced numerous calls from advocates to use his executive authority to unilaterally initiate that process.
The agencies could ultimately recommend moving marijuana from the strictest classification of Schedule I under the Controlled Substances Act (CSA) to a lower schedule or no schedule at all.
Biden has said he supports rescheduling to Schedule II, but advocates have pushed for complete descheduling, which would effectively end prohibition.
The president said in a statement on Thursday that he has “directed the Attorney General to develop an administrative process for the issuance of certificates of pardon to eligible individuals.”
In June, Attorney General Merrick Garland said that the Justice Department was “examining” marijuana policy and would be addressing the issue “in the days ahead.”
Around that time, the White House drug czar also said that the Biden administration is “monitoring” states that have legalized marijuana to inform federal policy, recognizing the failures of the current prohibitionist approach.
Meanwhile, a bipartisan group of congressional lawmakers filed a bill in April that would direct the attorney general to create a commission charged with making recommendations on a regulatory system for marijuana that models what’s currently in place for alcohol.
While Garland has made clear that he doesn’t feel it’s appropriate to federally prosecute people who use marijuana, he hadn’t independently acted on calls from certain lawmakers to initiate the process to decriminalize marijuana.
The recently appointed U.S. pardon attorney also recently weighed in on the prospects of mass cannabis clemency, telling Marijuana Moment that her office handles cases independently, but it could be empowered to issue broader commutations or pardons if directed by the president.
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The White House previously signaled that Biden would not be making any marijuana policy reform moves ahead of the election.
The press secretary said in August that she didn’t have “anything to announce today at this point” after being asked about a recent call to action by Pennsylvania Lt. Gov. John Fetterman (D), who is running for a U.S. Senate seat.
Biden and Fetterman did briefly discuss marijuana policy reform during a meeting near Pittsburgh on Labor Day, and a campaign spokesperson for the Senate candidate said the two talked about cannabis scheduling and executive authority to enact reform.
The president made his first public comments on marijuana issues since taking office after being pressed in July on whether he plans to follow through on his campaign pledge to release people who are incarcerated over non-violent federal cannabis offenses.
Biden reiterated at the time that he doesn’t believe people should be locked up over cannabis use, said that his administration is “working on” fulfilling that clemency promise and vaguely alluded to a crime bill that he suggested would address the issue.
Meanwhile, congressional lawmakers have continued to work legislatively to put an end to cannabis criminalization.
Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Booker filed a much-anticipated bill to federally legalize cannabis and promote social equity in July, and a Senate Judiciary subcommittee chaired by Booker subsequently held a hearing where members discussed the proposal.
But given the steep task of meeting the 60-vote threshold, the general expectation is that the comprehensive legislation will not advance this session, and conversations have pivoted toward putting together a package of more modest cannabis proposals such as protecting banks that work with marijuana businesses and expunging records of those residing in legal states.
For the time being, Senate Democrats are touting one piece of incremental marijuana reform legislation that passed the chamber back in April. The bipartisan bill is meant to streamline the process for scientists who want to access cannabis for research purposes.
That specific legislation hasn’t been enacted into law. But there are hopes that a slightly revised version that was introduced in July could reach the president’s desk in due time. It already cleared the House just days after its filing, and the Senate was prepared to hold an expedited vote on it last week, but it was delayed following the objection of a GOP senator.
If it makes it through the chamber and gets to Biden, who remains opposed to full federal marijuana legalization, it would mark the first piece of standalone marijuana reform legislation to ever become law.