Fact-Check: Biden Falsely Claims His Marijuana Pardons Expunged ‘Thousands Of Convictions’ In State Of The Union Address

President Joe Biden’s historic mention of administrative marijuana reform actions during his State of the Union address earned significant praise on Thursday—but his description of his administration’s cannabis accomplishments once again misstated and exaggerated the scope of the relief.

Seizing on the popularity of the issue ahead of the November election, Biden said he was “building public trust,” in part by “directing my Cabinet to review the federal classification of marijuana” and “expunging thousands of convictions for the mere possession, because no one should be jailed for simply using or having it on their record.”

While the president did direct the administrative scheduling review that’s ongoing, he did not expunge any cannabis records; instead, he issued two rounds of mass pardons, a largely symbolic action that offered formal forgiveness for people who’ve committed federal marijuana possession offenses.

But as the Congressional Research Service (CRS) explained in a November 2022 report, “the pardon may not remove all legal consequences of marijuana possession, because it does not expunge convictions.”

“Moreover, some collateral consequences of marijuana-related activities do not depend on a person being charged with or convicted of a [Controlled Substances Act] violation,” it said.

The Justice Department has taken the extra step of providing certificates to pardon recipients who apply, providing them with physical evidence of the clemency. But even the department clarifies that the “pardon means that you’re forgiven, but you still have a criminal record” in an email to certificate recipients.

Biden has made the false expungement claim at several points over in speeches, but the State of the Union address represents the highest profile event where he’s inflated the pardon action.

Weldon Angelos, president of The Weldon Project who received a presidential pardon under the Trump administration for his own cannabis conviction, told Marijuana Moment that Biden’s expungement claim “unfortunately does not align with the actual capabilities of presidential power nor the actions his administration has taken.”

“While the pardons issued for misdemeanor marijuana offenses was a symbolically important a step forward in rectifying some of the harm caused by outdated cannabis laws, it’s important to clarify that these actions do not equate to expungement,” he said. “The power to expunge records lies with Congress, not the presidency.”

“Expungement would completely erase the conviction from an individual’s record, offering a clean slate that pardons alone cannot provide. This distinction matters profoundly for individuals and communities disproportionately impacted by marijuana arrests and convictions,” he added. “Recognizing the limits of what has been achieved and the vast scope of what still needs to be done is essential in our continued fight for comprehensive cannabis reform.”

The Drug Policy Alliance’s (DPA) Cat Packer said in a statement on Friday that Biden “was right last night to say that no one should be jailed for marijuana possession or use. But let’s be honest, Biden made two promises on marijuana reform on the 2020 campaign trail—to decriminalize marijuana use and expunge records—and he has failed to deliver either. Unfortunately, the President’s rhetoric simply doesn’t match the reality.”

Last Prisoner Project (LPP) Executive Director Sarah Gersten said that while the president’s comments and administrative actions are “historic, the work is far from done.”

“The reality is that not one of the estimated 3,000 people in federal prison for cannabis-related offenses has been released,” she said. “Additionally, the pardons have not ‘expunged thousands of records’ nor will they alleviate the collateral consequences of a cannabis conviction like expungement or other forms of record clearance do.”

There have been congressional efforts to facilitate expungements for federal cannabis misdemeanor convictions, either as standalone legislation or as part of comprehensive legalization proposals. But those have not yet been enacted into law.

Some advocates say the president’s mischaracterization of his pardon action is eclipsed by the historic nature of the cannabis mention during a State of the Union address and the actions he has taken compared to predecessors.

“Legal misstatement aside, the simple fact that a sitting president is touting cannabis policy reform efforts in a State of the Union address is incredibly positive,” Morgan Fox, political director of NORML, told Marijuana Moment on Friday. “Joe Biden has said and done more than any president before him for this issue, but there is still quite a bit more he could do to help chip away at prohibition and provide relief for those on the receiving end of federal enforcement.”

“I hope that he pursues those options, and I’m similarly hopeful that elevating cannabis in this manner will raise its profile among voters and encourage lawmakers to prioritize popular—and increasingly bipartisan—legislation,” he said.

Meanwhile, the president’s statement that “nobody should be in jail for simply using” cannabis is a separate issue for advocates, as they agree with the sentiment but believe the administration should go further by vastly expanding the pardons to include groups like immigrants and people with non-violent marijuana sales convictions.

Advocates have also routinely pointed out that the pardons for simple possession did not release anybody from federal prison. Thousands also remain incarcerated for non-violent marijuana offenses that weren’t covered under the clemency action.

In any case, based on a recent poll, Biden’s cannabis moves stand to benefit him in November. The survey found the president’s favorability spiked after people were made aware of the possibility that cannabis could be rescheduled under the Biden-initiated review.

Following the review, the U.S. Department of Health and Human Services (HHS) advised the Drug Enforcement Administration (DEA) to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).

While that possibility evidently moves the needle for Biden among the general public, equity-focused advocates have stressed the point that it would not legalize marijuana, nor would it do anything to address the decades of harm under prohibition. It would allow state cannabis to take federal tax deductions that they’re currently barred from under an Internal Revenue Service (IRS) code known as 280E, however.

Whether DEA accepts the HHS recommendation is yet to be seen. And while many expect an announcement will happen before the election, the timeline is uncertain.

The Biden administration was recently pressed to reschedule marijuana by two coalitions representing military veterans and law enforcement—including a group that counts Drug Enforcement Administration (DEA) Administrator Anne Milgram among its members.

On the president’s pardon action, Rep. Barbara Lee (D-CA), co-chair of the Congressional Cannabis Caucus, told Marijuana Moment last month that the clemency should be “extended all the way out, and any unintended or intended consequences of the war on drugs should be dealt with to repair the damage.”

Former Rep. Ed Perlmutter (D-CO), however, told Marijuana Moment that he’s been “very pleased” with Biden’s clemency actions, arguing that the president has “taken some pretty, in my opinion, bold steps.”

Meanwhile, the U.S. Army recently clarified in a branch-wide notice that marijuana possession violations under the military drug code weren’t eligible under the president’s pardons. Sen. John Fetterman (D-PA) called it a “mistake” to exclude military from the relief.

Vice President Kamala Harris’s office has separately been reaching out to people who’ve received marijuana possession pardons—seeking assurance that the Justice Department certification process is going smoothly and engaging in broader discussions about cannabis policy reform.

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