“While symbolically significant, the President’s general pardon of simple marijuana possession and other related offenses would have had a marginal effect.”
By Erik Luna of Arizona State University and Weldon Angelos from The Weldon Project
Joe Biden, the President of the United States, issued an historic general pardon on October 6, 2022 for all prior crimes of simple marijuana possess, which were misdemeanors under federal law and D.C. Code. The president recently extended the general pardon to cover marijuana possession and use, as well as attempted simple possession. Both are misdemeanors.
As confirmed last week, the U.S. Health and Human Services Department’s a href=”https://www.marijuanamoment.net/feds-release-marijuana-documents/” rel=”noopener” target=”_blank”>scientific evaluation supports rescheduling marijuana/a> – from implementing statutory prohibition (Schedule I) to allowing medical prescriptions in accordance with federal regulations (Schedule III). The U.S. Health and Human Services Department scientific assessment supports rescheduling of marijuana from a federal regime that prohibits it outright (Schedule 1) to one that allows medical prescriptions in accordance with federal regulations (Schedule 3). This was confirmed just last week. Now, the Drug Enforcement Administration is completing its final review of the evaluation.
In a 2023 executive order, Biden claimed that his administration had taken action to a href=”https://www.marijuanamoment.net/biden-signs-equity focused-executiveorder-that’s touts marijuana clemency actions, calling criminalization a failed approach/” rel=”noopener” target=”_blank”>correct our country’s failed approach to marijuana. A 2023 executive directive claimed that “My Administration took action” to “correct the failed approach of our country to marijuana.”
Biden’s bold statement about marijuana reform is unlike any other made by his predecessors, except perhaps for President Jimmy Carter whose call in 1979 for decriminalization of marijuana was ignored. Biden’s administration should be credited for its general pardon and the possibility of administrative rescheduling, as well as other reform-oriented steps. Even describing prohibition in the past as “America’s failure to approach marijuana” has historical significance.
Let’s be clear, however: none of the actions taken by the administration has freed a single drug offender.
In the spring of 2022 we advocated a pardon for all marijuana crimes during a White House meeting with presidential advisers. We developed, along with former Deputy AG James M. Cole and other experts, a comprehensive model for evaluating categorically the clemency of federal prisoners serving sentences only for marijuana offenses.
We applauded President Obama for his positive actions, even though the scope of the general pardon in October 2022 was much smaller than we had anticipated. The appointment of Liz Oyer to the position of U.S. Pardon Attorney was perhaps the best move overall in this area. Oyer, a former federal public defense attorney, brought a new perspective to an office that was under pressure. She deserves credit for her efforts to improve the clemency process. We have enjoyed working with the pardon lawyer and her staff as they worked to fulfill President Obama’s acts mercy.
President Biden has not yet exercised his clemency powers to release a drug offender from federal jail. He has pardoned marijuana crimes of three individuals. None of them were incarcerated. The president also commuted sentences for nine marijuana offenders who were all already out of jail and under home confinement as part of a COVID related release program.
The president commuted sentences for 11 people convicted of methamphetamine and cocaine offenses on the same date last month. Our colleagues Mark Osler and Rachel Barkow described the latest clemency grant as “a little present in a large box.”
The box, however, was completely empty for federal marijuana offenders. The president’s list of clemency once again omitted those incarcerated and with criminal records who have committed marijuana offenses. This is not just a missed chance; it’s also a sign of a discrepancy between federal criminal justice reform and drug policy.
The president’s pardon of simple marijuana possession, and other related crimes was only going to be symbolic. According to Attorney General Merrick G. Garland, during his confirmation hearing, “[t]he Department of Justice had not traditionally devoted resources to pursuing individuals for simple marijuana possession. The federal courts only sentence a few hundred simple possession cases every year, and no one sentenced under simple possession goes to federal prison.
A general pardon is also of limited use to those with a criminal record that is deemed to be a modern-day scarlet letter. The pardon did not provide relief for those who are still haunted with felonies. These crimes make up the majority of marijuana convictions and sentences within the federal system. The felonies can have devastating collateral consequences, such as affecting employment, education and housing, but also carry civil disabilities, like disenfranchisement, that are not usually applicable to misdemeanor crimes.
A presidential pardon does not, by itself, expunge records of arrests or convictions (only Congress has the power to do so). The general pardon does not restrict the enforcement of any federal crimes, including simple marijuana possession.
In its 86th anniversary, the federal prohibition of marijuana is still the “supreme Law of the Land.” And virtually anyone involved in the distribution of the drug is guilty of a federal crime. The federal marijuana prohibition remains in place despite the fact that state and local laws have changed over the last quarter century. This policy gap has created a paradoxical justice system: America encourages while also incarcerating for marijuana distribution.
Three quarters of states, as well as the District of Columbia, and several U.S. Territories, have opted to legalize marijuana for people with certain medical conditions. Nearly half of the states (24) have legalized marijuana for recreational use. This means that over half of Americans live in a place where marijuana is available legally to adults.
Federal lawmakers (through annual budget riders) and federal police (per the “Cole Memo” and its unwritten counterpart) seem to have also abandoned the notion that marijuana must be eradicated coast-to-coast through the enforcement of an absolute criminal prohibition. Congress has been on the verge of ending federal prohibition for several years. A number of marijuana reform legislations are pending during the current legislative session.
It’s absurd, regardless of what the final resolution may contain. Neither political branch supports the federal ban and a majority American ______.
The (mostly good) fortune of entrepreneurs today operating in the multi-billion dollar state-legalized marijuana industry can be shocking compared with federal marijuana offenders. Take the example of Parker Coleman. Parker Coleman, a 25-year-old man arrested in a marijuana trafficking case was sentenced to 60 years federal prison for money laundering, firearms and drug distribution. Parker’s actions were not accompanied by threats or violence and would have received a fractional punishment in a state court.
All likelihood is that the Black man, now 37 years old, will be dead when he becomes eligible for release from prison on February 21, 2062. In the meantime, marijuana entrepreneurs are operating openly on a state-legalized marketplace that is growing. This industry, along with its half-million workers, maintains large facilities across the country for the production of recreational and medical marijuana. Sales were estimated at $33.6 billion last year, and are expected to reach well over $50 billion in 2027.
However, the revenue figures can be misleading as the cannabis industry continues bleed money due to the impact of the drug war on taxation. Federally regulated financial organizations are not allowed to work with entities that distribute federally prohibited drugs (like cannabis). Due to the fact that marijuana businesses operate largely in cash, they are particularly vulnerable to burglary and robbery. This, in turn requires them to hire armed guards in order to protect themselves and their customers.
In truth, marijuana entrepreneurs today are committing exactly the same federal crimes that Parker Coleman committed: Neither the marijuana itself, nor its quantity, nor guns or money, nor even the presence of guns can make Parker’s actions categorically distinct from those of a whole business sector. There is no rich-entrepreneur-selling-weed-in-nice-buildings exception to federal criminal law. The marijuana industry violates exactly the same U.S. Code provisions under which Parker, a decade earlier, was convicted.
We do not begrudge cannabis, whose success is crucial to America’s transition from illegal markets created by a national ban to legally regulated state markets under a federalism based system. Some of our industry friends, such as Glass House Brands’s Kyle Kazan have spoken out about the hypocrisy at play and the “moral obligation” for anyone “making money” in this area to work towards the release of Parker Coleman, who is serving time for marijuana crimes.
Parker is not the only one. Jerry Haymon is a Black 30-year-old man from Clovis (near Fresno) who was sentenced to a 10-year mandatory prison term for his involvement in a drug conspiracy that involved the shipment of marijuana from California to Virginia. Jerry was a football player at Clovis High School. He went on to major in economics in college and played defensive back. Jerry had been preparing to audition for professional football prior to his arrest. The trial judge regretted that he was bound by the federal minimum prison sentences for marijuana at sentencing.
Danny Trevino is a 51-year old Hispanic American businessman, father of three and a current prisoner serving 15 1/2 years for operating and owning a Michigan medical marijuana dispensary in violation of the state’s laws. Danny Trevino was not charged until former Attorney General Jeff Sessions revoked the Cole Memorandum. This was an action that was condemned by legal analysts, elected officials, and finally disowned by Sessions’ successor. Danny was sentenced to prison in federal court despite legal ambiguity surrounding federal and state marijuana laws and Congress’s ban on Justice Department funds used to prosecute cases involving medical marijuana.
Another case involves Canadian citizen Jimmy Cournoyer. He is currently serving a sentence of 27 years for his involvement in an international distribution scheme which trafficked large amounts of marijuana in upstate New York. Jimmy Cournoyer is currently the only prisoner for the original scheme, despite marijuana being legal both on the Canadian and New York State sides of the border. Jimmy’s nearly decade-old guilty plea agreement should have already gotten him out of federal prison. All those involved in the sentencing process, including the prosecution and defense, thought Jimmy would be transferred to Canada. There, he’d almost certainly be released by now, thanks to Canada’s more lenient inmate release rules. Jimmy will be walking out of an American penitentiary in November 2033.
Parker, Jerry Danny and Jimmy deserve to be released from prison. Many other marijuana offenders also deserve clemency.
While America struggles to come to terms with the end of its national marijuana ban, federal officials are now discussing the terms for the inevitable ending of prohibition. The next step is clearer than ever before: President Biden must commute every federal marijuana offender’s sentence and pardon those who live in peace within a free society. Congress, on its part, should pass legislation in support of these efforts. This includes expunging marijuana arrests and convictions. (And, yes, the political branches must end the federal prohibition. It is urgent that we act now.
The war against marijuana in the States is over. The federal government needs to make this clear: release the remaining marijuana prisoner and end the collateral effects of national prohibition.
Erik Luna is Amelia D. Lewis’ Professor of Constitutional Law and Criminal Law at Arizona State University. Professor Luna, who has won two Fulbright awards, is the founder of Academy for Justice at ASU’s Sandra Day O’Connor College of Law.
Weldon is the President of The Weldon Project, and co-founder Mission [Green]. Angelos is a hip-hop producer, criminal justice reformer and a leading advocate for criminal justice reform. He received a presidential pardon in full after serving over a decade out of a mandatory 55-year federal sentence.
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The article Correction of the Record on Marijuana Prisoners Left behind by Biden’s Pardons first appeared on Marijuana Moment.
