News Room

POTUS’s Pardon of Federal Pot Convictions

What does it mean in real life?

By Brian Kabateck

Recently, President Biden issued a Presidential Proclamation extending full and unconditional pardon to individuals convicted of simple marijuana possession under federal law (as well as under DC code offenses).

Biden explained his reasoning clearly: “criminal records for marijuana possession have led to needless barriers to employment, housing, and educational opportunities. And that’s before you address the racial disparities around who suffers the consequences. While white, Black, and brown people use marijuana at similar rates, Black and brown people are arrested, prosecuted, and convicted at disproportionate rates.”

He made this important distinction because it emphasizes that the decision is not motivated simply by evolving cannabis reforms at the state level or even business interests but a step toward justice—especially racial justice.

Between 1992 and 2021, more than 6500 people were convicted on federal charges of simple marijuana possession.

The precise demographics of this particular group are not known. However, as Biden pointed out, Black and brown people have been disproportionately targeted in cannabis offense enforcement and the War on Drugs generally. This racial disparity has had damaging consequences for BIPOC communities in terms of lost employment, housing, and education opportunities.

What real-life impact will the pardon have?

Functionally, the pardon represents a small but significant step.

According to White House officials, no one is currently in federal prison for simple cannabis possession, so there will be no releases due to this pardon.

The pardon also does not automatically expunge criminal records, which will reflect both the conviction and the pardon. But individuals will soon be able to apply for proof of pardon certificates issued by the Office of the Pardon Attorney.

Further, most marijuana convictions are for state-level offenses, not federal. Although the President has urged governors to take similar action, he cannot force states to follow his lead. It’s worth noting, however, that in states where cannabis is legal, approximately 2 million marijuana convictions have already been expunged or pardoned.

POTUS’s executive action doesn’t directly affect or change employment laws at the federal or state level. Numerous states, including California, already have laws restricting an employer’s ability to conduct background checks and inquire about past convictions. The California Fair Employment and Housing Council (“FEHC”) strictly limits employers’ use of criminal history in the hiring process. In fact, as of 2017, California outlawed employers from considering non-felony convictions for marijuana possession that date back more than two years.

But for people who have previously been denied employment and other life opportunities based on a record of simple marijuana possession, the pardon opens essential doors. As reported in the Washington Post, “The Justice Department said a pardon would remove “civil disabilities,” which include restrictions on the right to vote, to hold office or to sit on a jury. So, while it does not clear a person’s record, Biden’s action could help people get back to the voting booth or jury box or secure employment.”

Although the federal pardon has limited reach, practically and symbolically, it’s part of a significantly larger move toward restorative justice and a more reasonable approach to cannabis law. The President has also asked Attorney General Merrick Garland and Secretary of Health and Human Services Xavier Becerra to review the Schedule 1 drug classification of cannabis (which currently puts it in the same class as heroin and LSD and makes it more restricted than fentanyl).

If you believe that you or someone you love has faced unlawful discrimination in employment based on a state or federal conviction for simple possession of marijuana, speak with one of the experienced plaintiff’s attorneys at KBK.