November 29, 2022

Marijuana Possession Under Federal Law

On October 6, 2022, President Biden issued a three-part plan to set in motion a reform of the current federal marijuana policy. This policy statement announced three important points: (1) a full and unconditional pardon for  approximately than 6,500  individuals who had been convicted of marijuana possession under federal law, (2) strong words of encouragement to state governors to follow suit with similar state marijuana pardons and (3) that his administration would review the current status of marijuana as a Schedule I drug, the same schedule as heroin and LSD.

As the data has shown, the federal pardon will largely impact those individuals convicted under the laws of the District of Columbia, and does not affect the nearly 3,000 individuals convicted of higher level marijuana charges or impact those affected by state convictions. However, the President’s call to state governors to issue similar pardons may serve as a model to those governors who have yet to act on expunging marijuana convictions under state law, affecting millions more. Arguably the most important statement issued was point number three which prompted the “Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.”

Marijuana is currently a Schedule I drug, which means that it (according to the FDA, DOJ and DEA) has “no currently accepted medical use and a high potential for abuse,” and is in the same category as heroin, lysergic acid diethylamide (LSD) and peyote. However, we know that 37 U.S. states have legalized marijuana for medical use and 19 U.S. states have fully legalized recreational marijuana use so it’s arguable as to whether the majority of the US is in agreement with that current categorization.

For those affected by marijuana prohibition, this entire statement feels like a baby step, when most were hoping for a leap. However, this proclamation on marijuana reform is still quite important, thrusting U.S. cannabis policy into the spotlight, sending both cannabis awareness and stocks soaring.

The President Urges Governors Throughout the Country to Follow Suit

The pardons move the federal government more in line with the positions taken by some state governments, which have already reduced or eliminated the criminal punishments for simply possessing marijuana — punishments that for decades have sent people to prison.

Mr. Biden urged governors whose states have not done so already to follow his lead for people convicted on state charges of simple possession, who massively outnumber those charged under federal laws.

A vast majority of marijuana arrests fall under the jurisdiction of states, but the crime has historically represented about a third of nationwide drug possession arrests by state and federal officials. According to preliminary F.B.I. data, more than 170,800 of the roughly 490,000 drug possession arrests in 2021 were related to marijuana possession.

Marijuana is already fully legal in about 20 states, other states have relaxed criminal penalties, and although it remains fully illegal in a handful of states, the federal government will stop charging anyone with simple possession going forward.

The U.S. Department of Justice said, regarding the President’s proclamation granting a full, complete, and unconditional pardon to U.S. citizens and lawful permanent residents who have committed, or been convicted of, the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the U.S. Code, or in violation of D.C. Code 48–904.01(d)(1):

“The Justice Department will expeditiously administer the President’s proclamation, … restoring political, civil, and other rights to those convicted of that offense.” The Office of the Pardon Attorney is implementing a process to provide impacted individuals with certificates of pardon.

Asking for Change in How Marijuana is Scheduled as a Drug

The President has taken his pardon to a second level, seeking justice across the country by asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to expeditiously review how marijuana is scheduled under federal law.

“The federal government currently classifies marijuana as a Schedule 1 substance,” he said, “the same as heroin and LSD and more serious than fentanyl. It makes no sense.”

Inimai Chettiar, the federal director of the Justice Action Network, called the president’s move “a really good step” and said one of the most important parts of Mr. Biden’s policy is the directive to review how future marijuana crimes are prosecuted.

“That’s trying to change a policy decision that was made that marijuana is as dangerous as these other drugs, which we know is not true,” Ms. Chettiar said.

Certain Marijuana Charges are Still Punishable by Both State & Federal Laws

Mr. Biden stopped short of calling for the complete decriminalization of marijuana, which is something that Congress would have to do. But he said on Twitter that the federal government still needs “important limitations on trafficking, marketing and underage sales of marijuana.”

The pardons will not apply to people convicted of selling or distributing marijuana.

Vote in the 2022 Midterm Elections to Help Drive Change

At Manzuri Law, our California cannabis attorneys and support staff encourage everyone 18 and older to register to vote, if they have not already, and participate in the critical November 2022 elections that will determine control of Congress.

Some candidates — including Pennsylvania Democratic Lt. Gov. John Fetterman, who is running for his state’s U.S. Senate seat — have made the issue of marijuana legalization central to their campaigns. Others have remained silent on the issue. Check with your local nominees and currently elected officials to see where they stand on this critical issue, so you can vote with your beliefs.