President Joe Biden’s surprise marijuana pardon action last week has been widely praised as an important step toward righting the wrongs of prohibition. But advocates have also been quick to point out that the move is seriously limited in scope and will leave many victims of the war on cannabis behind, without relief.
People prosecuted at the state level, military service members, non-citizens and those with records for selling cannabis are among those still facing the consequences of criminalization regardless of the president’s proclamation, which only covers about 6,500 people who’ve been convicted of federal possession offenses and several thousand more who’ve violated the law in Washington, D.C.
Here’s a look at who is left behind by Biden’s cannabis clemency move:
People with state-level cannabis convictions
As president, Biden isn’t able to use executive action to force pardons for convictions at the state level—where the vast majority of cannabis enforcement takes place—but he has called on governors to provide the relief, with mixed reactions.
Some governors have said they’d review their own authority, while others have touted actions they’ve already taken. Still others have said outright that they wouldn’t be taking the president up on his request.
In any case, while the president’s move will help some people with federal records and adds to momentum for broader action in the states, it alone will not help most people who have suffered the consequences of cannabis criminalization.
Immigration rights activists are particularly frustrated that the proclamation went out of its way to explicitly declare that “this pardon does not apply to individuals who were non-citizens not lawfully present in the United States at the time of their offense.”
Rep. Alexandria Ocasio-Cortez (D-NY), for example, called attention to the exclusion on the day that Biden announced the action.
Additionally, @POTUS should treat all people equally and pardon ALL unjust simple possession convictions, not some.
If the US is admitting these laws were unjust, then we shouldn’t discriminate pardons based on citizen status.
Let’s get that liberty and justice for ALL
— Alexandria Ocasio-Cortez (@AOC) October 7, 2022
“If the US is admitting these laws were unjust, then we shouldn’t discriminate pardons based on citizen status,” the congresswoman said. “Let’s get that liberty and justice for ALL.”
Kassandra Frederique, executive director of the Drug Policy Alliance, pointed out that “cannabis is one of the main reasons why [non-citizens] are detained or deported,” adding that “most people don’t realize that our first drug laws were xenophobic immigration policies.”
While Biden’s latest executive order on marijuana is extremely welcome and long overdue, there remains much more to do to provide the relief and justice our communities deserve. Let’s take a look at what he did vs. what he should be doing. pic.twitter.com/Tq49O8M1nc
— Drug Policy Alliance (@DrugPolicyOrg) October 7, 2022
“This is why Drug Policy Alliance is working with our groups around the country to really figure out how do we continue to push where the president is right now to a broader conversation that’s actually going to bring the necessary material condition changes that our community needs,” she told Common Dreams.
The Immigrant Legal Resource Center (ILRC) and Immigrant Defense Project (IDP) have also criticized the exclusion of non-citizens and called on Biden to expand on the executive action.
“Marijuana must be fully descheduled, and communities most harmed by prohibition including immigrant communities of color need to see real and lasting returns from legalization,” IDP Senior Policy Attorney Jane Shim said. “We must also change immigration law to ensure that marijuana-related activity does not result in detention and deportation.”
Military service members
Because the pardon proclamation only affects people who’ve committed marijuana possession under U.S. criminal code, that’s also means that military service members who’ve been prosecuted for the same offense under the separate Uniform Code of Military Justice (UCMJ) aren’t eligible for relief, a White House spokesperson told Military.com.
“It looks like there are many steps that the lawmakers need to do before we can even begin to process whatever comes,” a Pentagon spokesperson said, suggesting that congressional action would be needed for members of the armed services to get relief for any past cannabis offenses.
People convicted for selling marijuana
Meanwhile, advocates are continuing to push for a broader recognition of the failures and consequences of the drug war, with some arguing that the presidential pardon should have extended to people with non-violent federal cannabis sales convictions, as well as those who’ve been charged with unrelated offenses following a marijuana prosecution.
They point out that pardoning people with mere possession convictions won’t result in anyone being freed from behind bars. Meanwhile, there are thousands of people serving time in federal prisons for selling cannabis even as a growing number of states enact legalization.
“The appropriate next step for the administration to take is to acknowledge that, because of failed policy of prohibition, there were entrepreneurs who stepped up to meet the American consumer demand for cannabis, and we should not hold those entrepreneurs back from the full rights of citizenship and issue pardons for those with non-violent distribution charges,” Justin Strekal, founder of the BOWL PAC, told Marijuana Moment.
Weldon Angelos, a criminal justice reform advocate who has worked with the White House on clemency issues since receiving a pardon for his own federal cannabis offense in 2020, told Marijuana Moment that Biden’s move is largely “symbolic.”
However, “nothing like this has been done since Jimmy Carter, so I would still say it’s a positive step,” he said, adding that he thinks “a lot more is coming.”
Other drug war victims
Federal data has consistently shown that marijuana is the primary driver of the drug war, accounting for the majority of drug-related arrests. But reform advocates feel that the same basic arguments about the inherent unfairness and racially discriminatory enforcement of drug criminalization should lead to relief for all non-violent drug offenses.
That would theoretically include those who’ve faced convictions and incarceration for violating punitive drug laws that Biden played a key role in crafting during his time in the Senate.
Before Biden issued the proclamation, the Last Prisoner Project and Students for Sensible Drug Policy (SSDP) launched a “Keep Your Promise, President Biden!” campaign that will involve scheduled civil disobedience protests on October 24 to call attention to the ongoing consequences of criminalization and push for broader reform.
SSDP Executive Director Jason Ortiz said in a press release that the president’s decision last week is “a crystal clear example of direct action working.” However, the organizations are proceeding with the campaign and protests because the action “stops short of bringing justice to the thousands of federal cannabis prisoners who should be released immediately.”
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SSDP and a collection of other reform groups also sent a letter to Biden on Monday previewing the protests and explaining that they’re still necessary given that his recent pardon action didn’t provide relief to “thousands of federal cannabis prisoners currently incarcerated in federal prison.”
“Releasing federal cannabis prisoners would go a long way in ending the nightmare that is the War on Drugs,” the letter says. “Your leadership would show the voters that Democrats follow through on their campaign promises, giving the millions of cannabis voters a real reason to vote in November.”
Sen. Cory Booker (D-NJ) said following the president’s announcement that the pardons represent a “significant step,” but more work has to be done to holistically address the drug war, including expungements for cannabis convictions.
He signaled that the stage is set for such reform during the lame duck session after the midterm elections.
Vice President Kamala Harris was also asked about the prospects of Congress passing additional cannabis legislation, and she said during an interview on Monday that voters should vote for lawmakers who support reform in order to create a “uniform” policy.
Meanwhile, federal agencies like the Justice Department and Department of Health and Human Services (HHS) have committed to quickly processing the federal cannabis pardons and carrying out a review into federal marijuana scheduling.
A poll released on Friday found that a majority of Americans are in favor of Biden’s pardon proclamation, and most also want to see their own governors follow suit with state-level cannabis relief.
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