President Joe Biden’s pardon of people convicted of simple marijuana possession is certainly historic, but it won’t actually free anyone from prison.
Biden announced Oct. 6 that he would grant mass pardons for simple marijuana possession convictions at the federal level. He urged state governors to follow his lead, calling upon them to release inmates from state prisons.
“I am urging all governors to do the same with regard to state offenses,” Biden said. “Just as no one should be in a federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either.”
However, the pardon did not immediately release anyone from federal prison. Under federal law, the punishment for simple marijuana possession first offense is up to a year in jail and a $1,000 fine. A second offense results in up to 2 years and jail and a $2,500 fine.
A report issued earlier this year by the United States Sentencing Commission found that, between 1992 and 2021, there were 6,577 U.S. citizens convicted of marijuana possession at the federal level. As of January, none of them remained in federal custody.
Biden said the pardon would also attempt to remove “needless barriers” such as the denial of employment, housing, and educational opportunities caused by the criminal records of those convicted. He also called upon the U.S. secretary of health and human services and the U.S. attorney general to review how marijuana is classified under federal law. The Controlled Substances Act has marijuana listed as a Schedule 1 drug, the same level as heroin, LSD and ecstasy.
The president’s pardon will not apply to the majority of marijuana-related arrests around the country, as they are made at the state level. In Oklahoma, which has had one of the nation’s broadest medical marijuana programs since 2019, simple possession of marijuana is now a misdemeanor offense that can result in up to a year in jail and a fine of no more than $1,000.
The annual crime report by the Oklahoma State Bureau of Investigation found that, in 2020 alone, more than 4,400 adults were arrested in the state for possession of marijuana, which accounted for 45 percent of all drug possession arrests.
Few Oklahomans remain in jail for marijuana possession owing to the passage of State Question 780 in 2016, the misdemeanor charge can still create new types of restraints that are felt long after a conviction is made.
David Gateley, a criminal justice policy analyst at the Oklahoma Policy Institute, said being charged with marijuana possession can have profound negative effects on a person’s life.
“When somebody has a record, that creates an immediate barrier,” he said. “Nine out of 10 employers use a criminal background check”.
Gateley outlined what is known as “collateral consequences of a conviction,” asserting that even something as simple as misdemeanor marijuana possession can negatively influence the outcome of applications for housing, employment, higher education and special licensing or certifications.
Furthermore, a misdemeanor charge can carry with it significant financial implications.
“For a simple possession case, on average, it’s about $1,800 in total,” Gateley said. “For a lot of people, this is a lot of money, it’s not something they can just write off, it’s not something they can write a check for.”
The Oklahoma Policy Institute estimates that more than $38 million in fees and fines have been levied in Oklahoma marijuana possession cases since 2012.
While these misdemeanors currently remain on one’s record permanently, that may change soon.
Oklahomans will vote on State Question 820 in March. If passed, SQ 820 would legalize recreational marijuana in the state of Oklahoma and would create a path for previous marijuana-related convictions to be overturned.
That question “requires resentencing, reversing, modifying, and expunging certain prior marijuana-related judgments and sentences.”