On October 6, 2022, President Biden issued a pardon for all US citizens and lawful permanent residents who have been convicted of simple possession of marijuana under federal law.
The most common question we have gotten since the news broke is “how does this affect me?” In most cases, it doesn’t.
Unfortunately, the pardon only affects those who have been convicted of simple possession under federal law (a rarity, in most parts of the country), while most convictions for simple possession of marijuana happen under state laws. If you were convicted for simple possession of marijuana in South Carolina, for example, you are not getting a pardon from President Biden…
On the other hand, it is significant and may have an effect on state legislatures who are considering ending marijuana prohibition in their states or governors who are considering issuing similar blanket pardons for those who have been convicted for possession of small amounts of weed.
President Biden has Issued a Pardon for Simple Possession of Marijuana Convictions
On October 6, the White House published “A Proclamation on Granting Pardon for the Offense of Simple Possession of Marijuana:”
Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Joseph R. Biden Jr., do hereby grant a full, complete, and unconditional pardon to (1) all current United States citizens and lawful permanent residents who committed 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 United States Code, or in violation of D.C. Code 48–904.01(d)(1), on or before the date of this proclamation, regardless of whether they have been charged with or prosecuted for this offense on or before the date of this proclamation; and (2) all current United States citizens and lawful permanent residents who have 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 United States Code, or in violation of D.C. Code 48–904.01(d)(1); which pardon shall restore to them full political, civil, and other rights.
The pardon applies to “all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act” and all persons who committed the offense of simple possession of marijuana in the District of Columbia.
The pardon applies to all persons who have committed the crime – whether or not they have been arrested, charged, prosecuted, and convicted, which means 1) those who have been convicted are now pardoned and 2) no one who committed the offense before October 6 can now be arrested and prosecuted for it.
The pardon does not apply to:
- Non-citizens who were not lawfully in the US at the time of the offense,
- Any other marijuana or controlled substance violations (it only applies to simple possession of marijuana offenses), or
- Persons who were convicted under state laws (the president does not have the authority to pardon state-law offenses).
How Does Biden’s Pardon Affect State Laws Prohibiting Marijuana Possession?
Biden’s pardon for simple possession of marijuana offenses won’t have a huge impact on individuals – mainly because federal law enforcement doesn’t ordinarily prosecute simple possession cases. It’s a matter that is ordinarily handled by state law enforcement and state courts.
In 2020, for example, there were fewer than 800 marijuana possession cases heard in federal court, and there may only be around 6500 total people who are eligible for the pardon in the federal courts, although there may have been many more simple possession convictions in the District of Columbia’s courts which will also be affected by the pardon.
Biden’s marijuana pardon may help to motivate and inspire state legislatures and state governors, however, as states across the country consider similar pardons for their state’s residents and legislatures consider legalization of the plant.
Biden has urged state governors to follow his lead, grant pardons for simple possession of marijuana offenses, and grant clemency for people who are incarcerated for state-level marijuana possession offenses.
Biden has also requested that the Health and Human Services Secretary review the current classification of marijuana under federal law. It is currently classified as a Schedule I drug along with deadly controlled substances like heroin and fentanyl. If marijuana is de-scheduled, it could have a huge impact on marijuana laws nationwide.
Can I Get a Pardon for Simple Possession of Marijuana in SC?
If the only conviction on your record is simple possession of marijuana in SC, you don’t need a pardon. You should be able to apply for and receive an expungement that completely removes the offense from your record (three years after conviction).
If your conviction was for possession with intent to distribute marijuana, you can also apply for and receive an expungement, but you will need to wait 20 years after the completion of your sentence.
If you are not eligible for an expungement, then you can still apply for a pardon in SC. Although there is no “blanket pardon” like that issued by President Biden, you may still be able to get a pardon by requesting one through the formal process.
Criminal Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC including drug crimes, traffic stops, and motions to suppress evidence. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.
