President Biden Announces a Three-Step Approach to Cannabis Reform: Federal Pardons, an Appeal to the States, and a Review of Cannabis Classification Under the Controlled Substances Act

On October 6, 2022, President Biden announced that his Administration granted unconditional pardons to individuals charged with or prosecuted for simple cannabis possession and urged all state governors to do the same. Importantly, he also directed the secretary of health and human services and the attorney general to review “expeditiously” how cannabis is scheduled under federal law.

It is estimated that the pardons will benefit approximately 6,500 federal cannabis-related offenders. In an official Statement, the Office of the Pardon Attorney has indicated that the proclamation will remove civil disabilities, such as the right to vote, hold office, and sit on a jury, and provide a pathway for covered individuals to obtain licenses, bonding, or employment for these individuals. In making the announcement, President Biden acknowledged the disproportionate rate of arrests, prosecutions, and convictions of Black and brown Americans for cannabis related offenses, despite nearly indistinguishable rates of cannabis use as compared to white Americans.

Notably, the President’s action most likely will not result in the release from prison for individuals currently serving sentences for cannabis-related offenses.^[1] In fact, almost all (99%) cannabis-related offenders in federal prison were convicted of drug trafficking, not simple cannabis possession.

President Biden’s message to the states was clear: no one should be in prison, federal or state, for the use or possession of cannabis. But President Biden lacks the authority to release any state-level offenders, who represent approximately two-thirds of prisoners serving sentences for cannabis-related crimes (according to the Last Prisoner Project), so the onus falls on governors to issue pardons to state-level offenders for cannabis-related offenses. While it remains to be seen how many governors will heed President Biden’s call, on October 7 North Carolina Governor Roy Cooper said that he has renewed his request that state attorneys examine state laws regarding simple possession of cannabis convictions and pardons to determine what actions the state “can and should take” to reform those laws and policies to “end the stigma” associated with cannabis convictions.^[2]

President Biden directed Secretary of Health and Human Services Xavier Becerra and Attorney General Merrick Garland to study cannabis scheduling. This could signal even more significant federal cannabis reform is coming. During the 2020 presidential campaign, President Biden said that cannabis should be removed from Schedule I of the CSA.^[3] President Biden acknowledged in his official Statement the irrationality of cannabis being classified as a Schedule I drug under the Controlled Substances Act, alongside heroin, and even higher than fentanyl and methamphetamine—drugs the administration identifies as driving the United States opioid epidemic.

Changing the classification of cannabis under the Controlled Substances Act could have far-ranging implications for existing state-sanctioned cannabis markets. For example, if cannabis is moved to Schedule II or Schedule III, primary regulatory authority would be shifted from individual states and local governments to the FDA, potentially disrupting the existing state cannabis markets.^[1] If cannabis is moved to Schedule III, Internal Revenue Code Section 280E, which currently prohibits cannabis companies (and any other company operating in connection with a Schedule I or Schedule II substance) from deducting certain business expenses beyond the costs of goods sold, would no longer apply—a move that would alleviate some of the immense financial burden cannabis industry operators currently face.^[4] Although the timing and scope of the administration’s review of cannabis scheduling is unknown, on October 7 HHS Secretary Xavier Becerra said that he intends to move “as quickly as we can” to comply with President Biden’s directive.^[5]

There is no doubt that President Biden’s announcement was significant. But, there is still much more that needs to be done to properly redress the harms caused by cannabis criminalization. Andy Cox served over 13 years in federal prison for non-violent cannabis offenses until his motion for compassionate release was granted and he was released on January 6, 2021. According to Mr. Cox, “This does not help nearly enough people. We need to expunge all marijuana offenses and set nonviolent prisoners free now.” Goodwin represented Mr. Cox in connection with his motion for compassionate release.

Until full reform is achieved and there are no more people serving sentences for non-violent cannabis offenses, Goodwin’s Cannabis practice will continue representing clients seeking release from federal prison in compassionate release and clemency proceedings.

^[1] The Last Prisoner Project estimates that there are 2,700 individual serving federal prison sentences for cannabis-related offenses.
^[2] Full Task Force Meeting - 10.7.2022 - YouTube
^[3] President Biden expressed support for reclassifying cannabis as a Schedule II drug to promote further research on its positive and negative impacts. Biden, Scrutinized for Crime Bill, Unveils Plan to Reduce Mass Incarceration - The New York Times (nytimes.com)
^[4] The Application of Internal Revenue Code Section 280E to Marijuana Businesses: Selected Legal Issues
^[5] HHS Secretary Becerra in Tampa says reviewing marijuana law should be done 'as quickly as possible' - Florida Phoenix