Federal Marijuana Pardons
What do we know?
On October 6, 2022, President Joe Biden signed a blanket order pardoning all federal possession of marijuana convictions. This is a historic moment in the history of cannabis law in the United States. While a measure of this kind was long overdue, it is encouraging to see that attitudes toward marijuana in the federal government are shifting significantly in favor of legalization.
The president’s order also called upon state governors across the country to issue similar pardons for all state possession of marijuana convictions, as well as directing the Drug Enforcement Administration via the Department of Justice to reevaluate how marijuana is scheduled under the controlled substances act. Currently, marijuana is placed in Schedule I – the same category of criminal offense as possessing heroin. Ironically, this means that marijuana is more heavily criminally controlled than fentanyl under the Controlled Substances Act. While it is unlikely that all states will accept the president’s invitation to pardon possessory marijuana offenses under their state laws, the President’s order sets the tempo for a new era in how cannabis is criminally defined, regulated, and prosecuted in the United States.
Marijuana Pardons FAQ
· Is the pardon automatic?
o Yes and No.
§ The President’s order grants an “unconditional pardon” to all “simple” possession of marijuana charges and convictions obtained throughout the history of the United States. However, you must submit an application to the United States Pardon Attorney so that it can be reviewed and accepted.
· Can I apply right now?
o No.
§ The Department of Justice has been ordered by the president to establish guidelines and criteria for eligibility and the processing of pardon applications. These guidelines have not yet been created. The Pardon Attorney has advised that they will not accept pardon applications under the President’s order until they have created a form for applicants to use.
· Do I need to hire an attorney?
o It depends.
§ Nothing prevents you from filing the pardon application yourself. You can apply through the DOJ Pardon Attorney’s website once the form application is promulgated. You do not need to hire an attorney to submit an application.
§ However, the pardon attorney will require to prove that you are eligible for the pardon, and an attorney can help you locate records and state your case as to why you are eligible.
§ If you are uncomfortable filing the application yourself, or your case is more complicated than a single possession of marijuana conviction, you should consider hiring an attorney to assist you in determining whether you are eligible and to help you avoid potential pitfalls in filing the application.
§ For example, the federal government prosecutes false statements made to federal agents. 18 U.S.C. § 1001. Hiring an attorney ensures that a trained attorney conducts the necessary review and legal research to make sure that your application is truthful and accurate.
· I am currently facing federal possession of marijuana charges. Does the president’s pardon apply to me even though I have not yet been convicted?
o Yes. The pardon applies to all federal charges that were pending on or before October 6, 2022, even if there has not yet been a conviction.
o The pardon does not protect individuals who, as of October 6, 2022, have not yet been arrested or accused of possessing marijuana.
· I was convicted of possessing marijuana and another controlled substance. Am I still eligible?
o It depends:
§ If you were convicted of possessing more than one drug in a single offense, no, you are not eligible.
§ If you were convicted of possessing marijuana in a separate count of the indictment or information, and also convicted of possessing another drug in a separate count of the indictment or information, then you may be eligible to receive a pardon only for the marijuana count of conviction.
· Does the president’s pardon apply to all marijuana crimes?
o No. The pardon applies only to possession of marijuana offenses. It will not apply to conspiracy to possess marijuana, distribution of marijuana, or possession with intent to distribute or other offenses involving marijuana.
§ There may situations that do not fit squarely in the eligible or ineligible box. Sometimes, the lawyers look to the record in the case, the circumstances of the arrest, and the exact language of the charge to determine whether a crime, especially a crime convicted under an older version of the law, fits the definition of an eligible offense. How the Department of Justice will interpret these gray areas remains to be seen. Some individuals may need to consult with an attorney to determine whether their case would be eligible for relief under the President’s order.
· I was convicted of possession of marijuana under Texas law or the law of another state. Am I eligible for the pardon?
o No. The president only has the authority to pardon federal criminal offenses. While the president has asked the governors of all 50 states to pardon their state offenders, the governors are not legally obligated to do so. Each state will have to decide whether to issue such pardons or not.
· I am not a United States Citizen or a Legal Permanent Resident. Am I eligible?
o No. The pardon applies to United States Citizens and Legal Permanent Residents.
· I was convicted before the passage of the Controlled Substances Act under an older federal marijuana statute. Am I eligible?
o Yes. The pardon covers all possession of marijuana offenses no matter what statute they were prosecuted under.
· Once my pardon application has been approved, how will I be able to show people that I have been pardoned?
o After receiving and approving your pardon application, the Department of Justice will issue a certificate reflecting the fact that you have been pardoned of the crime.
· What is the effect of a pardon?
o A pardon is an expression of the “President’s forgiveness.” It does not mean that you are innocent of the crime, and it does not mean that your arrest is expunged. It does remove all “civil disabilities” that result from having a federal conviction such as restrictions on the right to vote, hold public office, sit on a jury, or possessing a firearm. It can also help you to obtain professional licenses, bonding, or employment.
How can Hunter, Lane & Jampala PLLC help?
Our firm is deeply committed to ending marijuana criminalization and prohibition at every level. If you need guidance on the pardon application process, assistance in preparing or filing the pardon application, or clarification on how the pardon order applies to a more complex marijuana case, call our office today at (210) 202-1076 for a free consultation.
