The mass pardon for low-level marijuana offenders that President Joe Biden announced last week will affect nearly 7,000 U.S. citizens convicted of simple possession under federal law during the last few decades, according to an updated analysis that the U.S. Sentencing Commission (USSC) published yesterday. Within that group, 6,577 cases involved just marijuana, while 415 also involved other drugs, which are not covered by Biden's proclamation.
An additional 1,132 convictions, including 1,122 marijuana-only cases, involved noncitizens who were legally living in the United States. Within that group, Biden's proclamation is limited to "lawful permanent residents."
The USSC analysis covers FY 1992 through FY 2021. Biden's pardons apply to simple possession cases before and after that period, as long as the defendants committed the offense on or before October 6. The beneficiaries also include people convicted of simple possession under the District of Columbia Code. "Officials estimated that number to be in the thousands," The New York Times reports.
All told, then, the total number of beneficiaries may exceed 10,000, which nevertheless represents a tiny percentage of Americans with misdemeanor marijuana records, who typically are prosecuted under state law, not federal law. The Justice Department said it will "expeditiously administer the President's proclamation." Toward that end, "the Office of the Pardon Attorney will begin implementing a process to provide impacted individuals with certificates of pardon," thereby "restoring political, civil, and other rights."
Although simple marijuana possession is punishable by up to a year of incarceration under the Controlled Substances Act, the USSC reports that no one convicted of that offense remained in Bureau of Prisons custody as of January 29. Biden did not pardon people convicted of growing or distributing marijuana, about 8,700 of whom received federal sentences from FY 2017 through FY 2021. The average prison term during that period was 30 months, although a fifth of the defendants were sentenced to five years or more.
"Your recent executive order, while a great first step, did nothing to address the thousands of federal cannabis prisoners currently incarcerated in federal prison," 16 drug policy reform groups say in a letter they sent Biden on Monday. "While your recent executive order will help many, it will not release a single one of the nearly 2,800 federal cannabis prisoners." Although "eighteen states and the District of Columbia have legalized cannabis," the letter notes, "there are thousands of Americans who are serving long-term prison sentences, including some life sentences, in federal facilities for conduct involving amounts of cannabis that are far less than what dispensaries routinely handle on a daily basis."
In addition to drawing a morally dubious distinction between simple possession and other marijuana offenses, Biden's proclamation excludes noncitizens who are not legal permanent residents. The upshot, as Reason's Fiona Harrigan notes, is that even residents who are legally allowed to remain in the United States, such as refugees and asylum applicants, will still suffer from the ancillary penalties associated with marijuana misdemeanors, including vulnerability to deportation. Marijuana convictions also can exclude people from entering the country to begin with or prevent them from becoming citizens.
According to the USSC's analysis, about four-fifths of federal convictions for simple marijuana possession involved men. Forty-one percent of the defendants were white, while 32 percent were Hispanic and 24 percent were black.
Virginia accounted for 10 percent of the convictions, which presumably reflects the prevalence of federal property in that state. Border states also accounted for outsized percentages of the simple possession cases: The share was about 17 percent for Arizona, 15 percent for Southern California, and 12 percent for Texas. Those numbers reflect people caught with pot at the border.
As Reason's C.J. Ciaramella notes, a 2016 USSC report "found that most people charged by the feds with simple possession are either caught coming over the U.S.-Mexico border with small amounts, or caught on federal property, such as a military base, national park, or Veterans Affairs facility." These convictions account for a very small share of all simple possession cases, which are rarely prosecuted in federal court.
Since 1965, police in the United States have made nearly 29 million marijuana arrests, the vast majority for possession rather than cultivation or trafficking. Rep. Dave Joyce (R–Ohio), co-chair of the Congressional Cannabis Caucus, estimates that "more than 14 million cannabis-related records at the state and local level continue to preclude Americans from stable housing and gainful employment." Biden has no power to lift those burdens, although he urged governors to do so for people convicted of simple possession.
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