Correcting The Record On Marijuana Prisoners Left Behind By Biden’s Pardons (Op-Ed)

“Though symbolically important, the president’s general pardon for simple marijuana possession and related offenses was destined to have a marginal impact.”

By Erik Luna, Arizona State University & Weldon Angelos, The Weldon Project

On October 6, 2022, President Joe Biden issued a historic general pardon for all previous crimes of simple marijuana possession in violation of federal law and the D.C. Code, both of which are misdemeanors. A few weeks ago, the president extended the general pardon to cover offenses for marijuana use and attempted simple possession, which are also misdemeanors.

In all likelihood, the most important part of the president’s October 2022 action wasn’t the general pardon, but instead his ordering an administrative review of marijuana’s treatment under the federal government’s master drug scheme, the Controlled Substances Act. As just confirmed last week, the U.S. Health and Human Services Department’s scientific evaluation supports rescheduling marijuana—from a federal regime of absolute prohibition (Schedule I) to one of medical prescription pursuant to federal regulations (Schedule III)—which is now under final review by the Drug Enforcement Administration.

Over the course of more than a year, President Biden has touted his general pardon as an example of “keeping my promise” on campaign pledges to decriminalize marijuana, to free incarcerated marijuana offenders and to expunge marijuana convictions. “My Administration has taken action,” a 2023 executive order claimed, to “correct our country’s failed approach to marijuana.”

Certainly, President Biden has made a bolder statement on marijuana reform than any voiced by his predecessors—save perhaps President Jimmy Carter, whose 1979 call for marijuana decriminalization went unheeded. The Biden administration deserves a lot of credit for the general pardon, the prospect of administrative rescheduling and other steps in support of reform. Indeed, just describing prohibition as “America’s failed approach to marijuana” is historically meaningful.

But let’s be clear: None of the administration’s actions has released a single marijuana offender from prison.

Back in the spring of 2022, we had advocated for a general pardon of all marijuana offenses during a meeting with presidential advisors in the White House. Along with former Deputy Attorney General James M. Cole and others, we developed a comprehensive model to evaluate on a categorical basis the clemency eligibility of those serving federal prison sentences for marijuana-only offenses.

Although the October 2022 general pardon was far narrower in scope than we had hoped, we applauded the president for his positive action. Perhaps the best overall move in this area was the appointment of Liz Oyer as U.S. pardon attorney. A former federal public defender, Oyer brought a fresh perspective to a beleaguered office, and she deserves credit for trying to improve the process of clemency consideration. We’ve been pleased to interact with the pardon attorney and her staff, as they’ve worked to fulfill the president’s acts of mercy.

Unfortunately, President Biden has yet to exercise his clemency power to release a marijuana offender from federal prison. By our count, he has pardoned the marijuana offenses of three specific individuals, none of whom was incarcerated. The president has also commuted the sentences of nine marijuana offenders, all of whom were already out of prison and on home confinement under a COVID-related release program.

Last month, for instance, on the same day he extended the general pardon to cover attempted simple possession and use of marijuana, the president also commuted the sentences of 11 individuals convicted of cocaine and methamphetamine offenses. Our colleagues Rachel Barkow and Mark Osler described these latest clemency grants as “a small present in a big box.”

For federal marijuana offenders, however, the box was entirely empty. Once again, the president’s clemency list omitted people incarcerated for marijuana offenses and those burdened by criminal records for such offenses. This isn’t just a missed opportunity; it also marks a discrepancy in federal criminal justice and drug policy reform.

Though symbolically important, the president’s general pardon for simple marijuana possession and related offenses was destined to have a marginal impact. As Attorney General Merrick Garland noted during his confirmation, “[t]he Department of Justice has not historically devoted resources to prosecuting individuals for simple possession of marijuana.” The federal courts sentence only a couple hundred simple possession cases each year and, ultimately, no one sentenced for simple possession is in federal prison.

The general pardon also has limited value for those who bear the modern scarlet letter of a serious criminal record. By its terms, the pardon provided no relief to those still haunted by felonies, which constitute the bulk of marijuana-related convictions and sentences in the federal system. These felonies sometimes impose crippling collateral consequences for employment, housing and education, while also carrying civil disabilities (e.g., disenfranchisement) that typically don’t apply to misdemeanor offenses.

Moreover, a presidential pardon doesn’t expunge the records of an arrest or conviction as a matter of law (only Congress can do that). And going forward, the general pardon itself places no legal restriction on enforcing any federal crime—not even for simple marijuana possession—since violations committed after the pardon’s effective date remain fully arrestable and punishable as before.

Now in its 86th year, federal marijuana prohibition is still “the supreme Law of the Land,” and virtually everyone involved in the drug’s distribution is committing a federal felony. This remains the case despite a transformation in state and local marijuana laws over the past quarter century, with the growing policy gap producing a paradox of justice: America is both encouraging and incarcerating those involved in marijuana distribution.

Three-quarters of the states (as well as the District of Columbia and several U.S. territories) have ditched blanket criminal bans in favor of safe, regulated, legal access to marijuana for those with qualifying medical conditions. What’s more, nearly half of the states (24) have also legalized recreational marijuana, and, as a result, over half of all Americans now live in a state where marijuana is legally available to adults.

Both federal lawmakers (through annual appropriation riders) and federal law enforcement (per the so-called “Cole memo” and its unwritten equivalent) also seem to have abandoned the idea that marijuana must be eliminated coast-to-coast by enforcing an absolute criminal ban. For several years now, Congress has stood at the precipice of passing laws that would finally end federal prohibition, with a series of marijuana reform bills pending in the current legislative session.

But whatever the details may be in the ultimate resolution, it’s absurd to keep punishing individuals for violating a federal ban that neither of the political branches actually supports and that an overwhelming majority of Americans oppose on a bipartisan basis.

The plight of federal marijuana offenders can be jarring compared to the (mostly) good fortune of today’s entrepreneurs operating in a multi-billion-dollar state-legalized cannabis industry. Consider, for instance, the case of Parker Coleman. At the age 25, Parker was arrested for a pot trafficking scheme, for which he was convicted and given a 60-year federal sentence for distributing marijuana and related money laundering and firearms violations. None of it involved threats or violence, and Parker’s conduct would have generated a fraction of the punishment in state court.

In all likelihood, however, the now-37-year-old Black man will already be dead by the time he’s eligible for prison release on February 21, 2062. Meanwhile, marijuana entrepreneurs operate openly in a burgeoning state-legalized market. The industry and its half-million employees maintain large facilities around the nation for the production, processing and distribution of medical and recreational marijuana, with estimated sales of $33.6 billion this past year and projected sales increasing to well over $50 billion by 2027.

The revenue numbers can be misleading, however, as much of the cannabis industry continues to bleed red ink due to the drug war’s impact on taxation and financial services. Among other things, federally regulated financial institutions are prohibited from working with entities involved in the distribution of federally banned drugs (like marijuana). As a result, much of the industry operates in cash, making marijuana businesses particularly susceptible to robbery and burglary, which, in turn, requires the businesses to hire armed guards to protect their employees and customers.

If truth be told, today’s marijuana entrepreneurs are committing the exact same federal crimes as Parker Coleman did: Neither the drug itself, nor the quantity of marijuana distributed, nor the presence of guns, nor the amount of money involved, make Parker’s offenses categorically different from the conduct of an entire business sector. There is no rich-entrepreneur-selling-weed-in-nice-buildings exception to federal criminal law. Instead, the marijuana industry openly violates the exact same provisions of the U.S. Code under which Parker was convicted and sentenced a decade ago.

We don’t begrudge the cannabis industry, the success of which is critical to America’s movement from illicit markets created by a nationwide ban, to lawfully regulated state markets in a federalism-based system. In fact, some of our friends in the industry, like Glass House Brands’s Kyle Kazan, have been outspoken about the hypocrisy now at work and the “moral imperative for anybody” “making money in this space” to seek the release of people like Parker Coleman who are serving hard time for marijuana offenses.

Parker’s not alone. There’s the case of Jerry Haymon, a 30-year-old Black man from Clovis, California (near Fresno), who received a mandatory 10-year sentence for a drug distribution conspiracy where packages of marijuana were shipped from California to Virginia. Jerry had been a football star out of Clovis High School, who went on to play defensive back in college, where he was majoring in economics (and even made the dean’s list one semester). Prior to his arrest in 2017, Jerry was looking to try out for professional football. At sentencing, the trial judge regretfully noted that his hands were tied by federal mandatory minimum prison terms for marijuana.

Then there’s the case of Danny Trevino, a 51-year-old Hispanic-American businessman and father of three, who is currently serving a 15 ½-year sentence for owning and operating a Michigan dispensary under that state’s medical marijuana laws. Federal drug enforcement waited to charge Danny until the Cole memo was rescinded by former Attorney General Jeff Sessions—a move that was pilloried by legal analysts and elected officials and eventually disowned by Sessions’s successor. But in the interim, Danny was convicted and sentenced to federal prison despite the legal murkiness around federal and state marijuana law and Congress’s prohibition against Justice Department funds being used to prosecute medical marijuana cases.

Still another case involves Canadian-citizen Jimmy Cournoyer, who is serving a 27-year sentence for his involvement in a distribution scheme that trafficked large quantities of marijuana across the international border in upstate New York. Today, Jimmy is the only person still incarcerated for the underlying scheme despite the fact that marijuana is now legal on both sides of the border between Canada and New York State. In reality, Jimmy should already be out of federal prison based on his nearly decade-old plea agreement. Everyone involved in his sentencing, including the prosecution, expected Jimmy to be transferred to Canada, where he almost certainly would be free by now under that nation’s more lenient rules for inmate release. Instead, Jimmy is scheduled to walk out of a U.S. penitentiary on November 21, 2033.

Parker, Jerry, Danny and Jimmy should be released from federal prison—and many other marijuana offenders should be considered for clemency, too.

As America muddles its way through the twilight of our national pot ban, with federal officials now debating the terms of prohibition’s inevitable end, the next steps are clearer than ever: President Biden should commute the sentence of every individual incarcerated for a federal marijuana offense, and he should pardon such offenses for people who already live peacefully in free society. For its part, Congress should enact legislation to support these efforts, including the expungement of marijuana arrests and convictions. (And, of course, the political branches should end federal prohibition. We need it done yesterday.)

The war on marijuana is over in the states. It’s time for the federal government to say as much: Release the remaining marijuana prisoners and lift the collateral consequences of national prohibition.

Erik Luna is the Amelia D. Lewis Professor of Constitutional and Criminal Law at Arizona State University. A two-time Fulbright award winner, Professor Luna is the Founder of the Academy for Justice, a criminal justice reform program at ASU’s Sandra Day O’Connor College of Law.

Weldon Angelos is the president of The Weldon Project and co-founder of Mission [Green]. A hip-hop music producer and leading criminal justice reform advocate, Mr. Angelos received a full presidential pardon after serving more than a decade of a 55-year mandatory federal sentence for low-level marijuana transactions.

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