President Biden’s historic announcement on federal cannabis reform – what it does and what it does not do by Patrick K. Nightingale, Esq.

On Thursday, October 6, 2022, President Biden made a historic announcement relative to federal cannabis prohibition. The announcement contained three distinct provisions.

First, anyone convicted of simple cannabis possession (21 U.S.C. §844) will receive a Presidential Pardon. Reports estimate this to be as many as 6500 individuals who will now no longer have a federal drug possession charge on their criminal record. As the President noted during his announcement, even a simple possession charge can have far reaching implications regarding employment, professional licensure, access to federally subsidized housing, and eligibility for federal student loans. Removing this barrier can only benefit our society as a whole as affected individuals can reach their full economic potential.

Second, the President has called on state Governors to pardon cannabis possession offenses. While President Biden lacks the authority to direct or compel state Governors to follow his lead, it reflects the national trend of state level legalization for both medicinal and full adult use of cannabis. Many states, including Pennsylvania, restrict employment and investment to those with disqualifying drug related convictions, though Pennsylvania recently dropped simple possession of cannabis as a barrier to employment in its licensed medical marijuana facilities. Pennsylvania, under the leadership of Lt. Governor John Fetterman, adopted an “expedited pardon process” for cannabis only convictions, including cannabis felonies. Successful applicants have received pardons in as little as six to nine months as opposed to the usual three to five year process. Gov. Wolf also recently opened a thirty day window for Pennsylvanians convicted of possession of a “small amount” of marijuana. Eligible applicants can receive a pardon in as little as a few weeks.

Additionally, the President’s announcement reflects state laws that have legalized adult use of cannabis. Many states provide for retroactive expungements of cannabis related convictions for activity that is now legal. Black and brown Americans are far more likely to be arrested, prosecuted and convicted for cannabis possession than their white counterparts despite similar rates of use. Removing these convictions gives those who have disproportionally borne the brunt of the “War on Weed” gives them a better opportunity to participate in the new green economy.

Third, the President has directed Health and Human Services and the Drug Enforcement Agency to review cannabis’ Schedule I classification. This is potentially the most impactful part of his announcement as even something as simple as rescheduling to Schedule II will have a significant impact. Schedule I classification strips cannabis users, whether medical or adult use, of their Second Amendment rights. Driving Under the Influence penalties for a Schedule I controlled substance are often the harshest under state law, even if the motorist is not actually impaired. Cannabis businesses are denied bankruptcy protection, cannot deduct standard operating costs on their federal taxes, and face usurious interest rates. Risk adverse banks lead to an all cash operating model that places customers and employees at risk as they handle large amounts of currency on a daily basis.

Rescheduling should be obvious, right? Cannabis has never fit the criteria of a Schedule I controlled substance, defined under federal law as a substance with a high potential for abuse and with no accepted medical use. Surely Congress conducted extensive fact finding before placing cannabis in Schedule I. Surely there must have been studies and testimony showing that cannabis was as dangerous as heroin. Surely there must have been evidence that cannabis was more dangerous than Schedule II controlled substances such as cocaine, fentanyl and methamphetamine? Actually, quite the opposite happened. Cannabis was temporarily placed in Schedule I pending the results of a commission chaired by former PA Governor Raymond Shaffer. President Nixon tasked the “Shaffer Commission” with the job of determining in to which Schedule cannabis should be placed. Nixon was dismayed when Gov. Shaffer’s commission recommended regulating cannabis in a manner similar to alcohol. It’s remained Schedule I ever since.

The DEA has been sued many times by activists seeking rescheduling or de-scheduling. And it has proven very adroit at slow walking it’s administrative reviews, often taking years to conclude that cannabis should remain Schedule I. With the President directing the review himself with HHS and DEA respond any differently? Will these agencies act within the remainder of the President’s term in office? If the White House flips Republican in 2025 will the new President change course? Republican response to the President’s announcement has been to link cannabis possession with a rise in violent crime despite no such evidence. Will they continue to perpetuate “reefer madness” nonsense as the ruling Party?

As significant as this announcement is, it does have its limits. As noted above, the President has directed federal agencies to review cannabis’ Schedule I classification. These agencies, as they have in the past, can easily say “well, we reviewed it as directed and we believe it should remain Schedule I until Congress says otherwise”. And, as noted above, a change in Administration will bring a change to those leading HHS and DEA. Will newly appointed Republican secretaries change course?

It is laudable that an estimated 6500 Americans will receive pardons of their federal possession convictions. But, when one considers the 50 years that cannabis has been illegal, this amounts to 130 individuals per year. Compare and contrast with the hundreds of thousands of Americans who have been charged and convicted every year since the dawn of the Controlled Substances Act and the very limited impact of Biden’s announcement comes in to focus. Most Americans who have sustained a cannabis possessory conviction have been prosecuted and convicted at the state level. State adult use legalization has led to retroactive expungements for thousands, maybe even hundreds of thousands, but many millions of Americans still carry the stigma of a narcotics conviction for possessing a plant. President Biden’s urging of state Governors to adopt similar policies reflect this fact. The bottom line is that only state level pardons and expungements can truly right some of the harms caused by cannabis prohibition.

President Biden also made it clear in his remarks that his announcement will not apply to those convicted of felony cannabis trafficking. This group may not engender as much sympathy as those who were convicted of simple possession, but this is the only group actually serving (or have served) prison sentences. A local activist put it thusly: “I have friends in Cali making millions selling weed. I have friends in Pittsburgh doing time for the exact same thing”. As America’s cannabis industry continues to expand and enrich already wealthy white investors, the continued prosecution and incarceration of unlicensed “legacy market” operators appear increasingly unjust. Pennsylvania’s medical cannabis industry placed significant barriers to participation in the form of a very limited number of licenses and very high costs just to apply for one. Legacy operators stood no chance and had no opportunity to emerge from the cannabis underground. Additionally tens of millions of American cannabis consumers utilize the legacy market, whether it’s because their state continues to criminalize cannabis use or they prefer not to patronize “corporate cannabis”. Pennsylvania, for example, has a robust medical program, but as many as 1.5 million – 2 million Pennsylvanians obtain cannabis from the legacy market. Even if Pennsylvania were to legalize the adult use of cannabis, legacy market operators will continue to face federal prosecution regardless of whether their cannabis ever crosses state lines.

And, again, the only reason legacy market operators are in this situation in the first place was a direct result of the President of the United States of America intentionally, deliberately and willfully lying to Congress about the relative harms of cannabis, just like the former head of the Federal Bureau of Narcotics did in the “reefer madness” years of the 1930s. The only way to begin to address the incredible harm of cannabis prohibition is the pardoning of ALL who have sustained cannabis related convictions.

President Biden’s announcement was both historic and limited in scope. While some will reap an immediate benefit, the effects of the announcement may not be realized for quite some time, if realized at all. This was a good “first step”. But, as with President Trump’s First Step Act, without a second or third step the effects will be muted.