President Biden’s pardons for thousands of Americans convicted of possessing marijuana don’t apply to state charges or many immigrants at risk of deportation.
WASHINGTON — Valerie Schultz’s conviction for possession of a small amount of marijuana in 2010 was anything but simple.
Ms. Schultz was arrested on federal land, the Mount Olympus Trail in Utah, which means she was charged under federal law. The authorities found pot in her car, so her license was revoked. Without the ability to drive, she was forced to give up her job teaching second grade.
“It just seemed like it was very harsh punishment,” said Ms. Schultz, 33. “You think I’m such a menace to society because I’m smoking in a forest?”
President Biden’s decision last month to pardon thousands of people who had been convicted of marijuana possession under federal law was an acknowledgment that his administration does not see possession of cannabis, with no intent to sell or distribute, as a public safety threat.
But people like Ms. Schultz, whose lone conviction has hounded her for more than a decade, represent just a sliver of those swept up in the decades-long war on drugs. A majority of marijuana convictions have been state crimes, which Mr. Biden does not have the authority to pardon; he can only hope that governors will follow suit.
And while many advocates welcomed the presidential act of forgiveness, they say far too many people — many of them Black and Latino — are not eligible for the pardons, leaving them with minor marijuana convictions that will continue to get in the way of job prospects, educational opportunities and financing for homes.
Kevin Munoz, a White House spokesman, said the marijuana announcement was one of the largest single uses of the president’s pardon power in history, one that “will bring relief to thousands of Americans, disproportionately Black and brown, who are unfairly barred from housing, employment and benefits.”
The highly targeted pardons fit a broader pattern for Mr. Biden when it comes to reforming America’s criminal justice system. A champion of aggressive drug laws earlier in his career, including the 1994 crime bill that led to mass incarceration, he has more recently embraced leniency for those convicted of minor drug offenses.
As president, he has favored taking limited steps that enact change slowly — not the kind of overhauls that some in his party believe are necessary to reverse the impact of harsh prison sentences that have disproportionately harmed minorities. (Mr. Biden has said he does not support legalizing marijuana, putting him at odds with 80 percent of self-described Democrats and 68 percent of Americans, according to a Gallup poll released this month.)
“It’s symbolic to have the White House to start getting behind decriminalization of marijuana in this intentional way,” said Nayna Gupta, the associate director of policy at the National Immigrant Justice Center. She said that 45,000 immigrants had been deported for state and federal marijuana possession charges between 2003 and 2018. “But the symbolism of it is different than who does it actually help and affect and impact?”
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Criminal justice reform advocates said most federal marijuana possession cases involved someone found with the drug at a border checkpoint, on federally owned land or at an airport — even if they were flying out of a state that has legalized marijuana use.
More than 55 percent of the 7,800 citizens and legal permanent residents convicted of federal marijuana possession from 1992 to 2021 were Black or Hispanic, according to data released by the U.S. Sentencing Commission. Most of the prosecutions for the drug have occurred in California, Arizona and Texas. Nearly 150 people were sentenced in the federal prison system for marijuana possession in the 2021 fiscal year, while more than 1,000 offenders were sentenced for trafficking marijuana, according to the commission.
Ms. Schultz, now a freelance filmmaker in Los Angeles, said she was thankful for Mr. Biden’s pardon, especially since a clear record may make it easier for her to secure a mortgage. But she questioned what additional research of marijuana Mr. Biden would need to issue more sweeping action that would cover more nonviolent drug offenders currently in prison.
“How long have they been saying, ‘Let’s study it’?” Ms. Schultz said. “The research is out there.”
Legal permanent residents — people with green cards — were covered by the president’s pardons. But they left out many immigrants at risk of deportation because of marijuana convictions. Mr. Biden’s order failed to instruct federal immigration authorities to stop deporting immigrants for possession of pot, according to a letter sent to Mr. Biden this month by dozens of civil and immigrant rights groups.
“You rooted the Oct. 6 proclamation in the pursuit of racial equity, noting that ‘Black and brown people have been arrested, prosecuted and convicted at disproportionate rates,’” the groups wrote. “Yet you exclude Black and brown immigrants facing the same structural racism as U.S. citizens.”
Kenault Lawrence, 38, immigrated legally to the United States when he was 10, settling in Front Royal, Va., and graduating from high school as an undefeated wrestling champion. Years after two Virginia misdemeanor convictions for possession with intent to distribute less than half an ounce of marijuana, Mr. Lawrence was detained by federal agents for more than a year and deported to Jamaica.
His first son was born months after he was detained in 2011, and he was deported in 2012, forcing him to spend almost a decade away from his wife, an American citizen, and his son.
Advocacy groups spent almost nine years working to get Mr. Lawrence returned to the United States. But after finally succeeding in coming home last year, he faces the possibility of being deported again if he cannot persuade an immigration court to permanently cancel his deportation. Since his charges included intent to distribute and were under state law, and because the president’s order did not address deportations, Mr. Biden’s pardon will not help.
“This is America,” Mr. Lawrence said, adding that he was thankful to be home but worried that his use of pot decades ago could send him away again. “People do smoke weed and you know, now it’s legal. Back then, we used to hide it.”
Mr. Biden’s pardons may have helped rally Democratic supporters to the polls in the midterm elections by serving as a kind of political down payment for those who wanted the president to go much further.
Some governors took notice: Gov. Kate Brown of Oregon, a Democrat, last week announced pardons for state charges of simple marijuana possession before 2016, when marijuana was legalized in Oregon. The move affects an estimated 45,000 people, the governor’s office said.
Other Democratic governors, including in Louisiana and Minnesota, do not have the authority to issue pardons for marijuana offenses; they must go through state boards instead.
Still, Republicans have seized on the president’s decision to portray him as weak on law and order. And several Republican governors have already rejected the president’s advice. Gov. Asa Hutchinson of Arkansas accused Mr. Biden of “playing election-year politics” with the marijuana announcement and said such pardons should be considered on a case-by-case basis “in this time of rising crime.” A spokeswoman for Gov. Greg Abbott of Texas said the state would not take “criminal justice advice from the leader of the defund police party.” (Mr. Biden has not supported defunding the police.)
Mr. Biden also directed federal agencies to review whether marijuana should remain classified as a Schedule 1 drug — the same legal category as heroin and LSD. Advocates argue that changing the classification could encourage lawmakers to lighten the criminal penalties for marijuana-related crimes.
Changing the classification would make it easier for legal cannabis companies to use federally chartered banks, and it would allow federal health officials to conduct research on the medical impact of marijuana.
Mr. Biden’s aides say those who are not eligible for pardons under the current order can apply for one through the Justice Department’s normal clemency process — a case-by-case system the president used to commute the sentences of 75 drug offenders this year. He has committed to relying less on prison for nonviolent drug offenders by expanding prevention programs and alternatives to detention.
Jeremy Sharp, a 35-year-old from Athens, Ga., who speaks to college students about drugs, said he knew how even minor drug offenses could upend a person’s life.
While leading overdose prevention training recently at the University of Georgia, Mr. Sharp spoke to students about how he had been charged with marijuana possession three times, which he believes put him at a disadvantage as he pursues law school. He hopes to build a career helping people struggling with addiction avoid incarceration.
Mr. Sharp would not be eligible for a pardon because he was convicted on state charges. But he said he saw Mr. Biden’s decision as a symbolic gesture rather than a sign of broad change.
“It is a political move,” Mr. Sharp told the group of college students.