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President Joe Biden’s mistaken belief that his marijuana pardons expunged records could end up causing legal issues for recipients, as he not only continues to insist that those cases are sealed but now claims that those who received clemency no longer need to disclose their arrests or convictions on official forms, contrary to the law.
The president has said on multiple occasions—including during his State of the Union address last week—that his pardons expunged thousands of cases, even though presidential pardons simply represent formal forgiveness and, as the Justice Department and congressional researchers have clarified, the forgiven offenses remain on the recipient’s record.
But what’s been largely chalked up to a rhetorical blunder became a more pressing concern on Wednesday, as Biden told supporters at his Wisconsin campaign headquarters that people who were pardoned are no longer required to disclose their cannabis records on forms such as employment or housing applications that prompt them to provide that information.
After acknowledging a supporter who held a sign quoting his position that nobody should be jailed over marijuana possession and telling him that he’s “taking care” of the issue, the president again conflated pardons with expungements and then went further, suggesting that the relief exempted recipients from broader disclosure requirements.
“No one is going to be jailed. No one should be jailed for just using and possessing marijuana and it staying on their record,” he said, according to a White House readout. “By the way, the fact of the matter is that stays on their record all—the whole time just for smoking marijuana. Now, if you’re out selling it, if you’re out growing, it’s a different deal. But if you’re just using, it should be wiped off your record.”
“Because you have that on your record, you have to—’Have you ever been arrested or do you have a felony on your record?’ You have to put ‘yes,’” he said, referencing forms that require the disclosure such as certain job applications. “Not anymore. Not anymore.” (Emphasis added.)
While some states have moved to “ban the box”—a phrase associated with preventing employers from inquiring about certain past convictions on application forms—there are still various penalties for failing to be truthful about that disclosure if that information is solicited. And the Justice Department has made clear that presidential pardons do not exempt people from that requirement.
Presidential pardon guidance that DOJ has issued says that a “presidential pardon will restore various rights lost as a result of the pardoned offense and should lessen, to some extent, the stigma arising from a conviction.” However, “it will not erase or expunge the record of your conviction.”
“If your petition is granted, both your conviction and pardon will show on your record,” it says. “Therefore, even if you are granted a pardon, you must still disclose your conviction on any form where such information is required, although you may also disclose the fact that you received a pardon.”
Further, a presidential pardon acknowledgement from former Acting U.S. Pardon Attorney Rosalind Sargent-Burns that was sent to Weldon Angelos, who received clemency for his own cannabis conviction under the Trump administration, specifically addresses the disclosure issue.
The pardon “does not erase or expunge the record of conviction and does not indicate innocence,” the document, shared with Marijuana Moment, says. “On any application or other document that requires the information, a pardon recipient should disclose the fact of his or her conviction. However, the information that a pardon has been granted may be included and the warrant may be shown.”
Also, in an email to Biden’s cannabis pardon recipients who applied for a certification, DOJ clarifies that the “pardon means that you’re forgiven, but you still have a criminal record.”
The Congressional Research Service (CRS) additionally explained in a November 2022 report that the presidential marijuana pardon “may not remove all legal consequences of marijuana possession, because it does not expunge convictions.”
“Moreover, some collateral consequences of marijuana-related activities do not depend on a person being charged with or convicted of a [Controlled Substances Act] violation,” it said.
Marijuana Moment reached out to the White House and Justice Department for comment, but a representative was not immediately available. The U.S. Office of the Pardon attorney under DOJ acknowledged an inquiry via email but referred it to an online media submission form where the question had already been submitted and unanswered.
Again, the president’s incorrect assessment of his pardons as equivalent to expungements has been a recurring theme in various speeches where he’s touted the clemency action. It’s become a point of frustration for certain advocates who have pushed the administration to go further than simple possession pardons by fulfilling campaign pledges to federally decriminalize cannabis and actually expunge records.
Biden’s comments at his Wisconsin campaign headquarters this week come as Vice President Kamala Harris prepared to meet with three cannabis pardon recipients at the White House for a roundtable event on Friday to learn more about their experience with the clemency process, including receiving certificates of the forgiveness from the Justice Department.
Staff with the VP’s office started reaching out to people who were pardoned under Biden’s 2022 and 2023 proclamations earlier this year, taking meetings as officials worked to better understand how they’ve navigated the process.
One of the individuals who is taking part in the event is a longtime cannabis activist, Chris Goldstein, who recently received a pardon certificate from DOJ after being formally forgiven for a 2014 cannabis possession case stemming from a protest advocating for federal marijuana policy reform.
Goldstein told Marijuana Moment that he met with U.S. Pardon Attorney Elizabeth Oyer over the last month to go over the logistics of the event. Oyer’s office has been overseeing the clemency certification process.
While the purpose of the meeting is focused on the president’s clemency action, the event seems to be the latest signal that the administration is hoping to appeal to voters ahead of the November election by promoting an issue with bipartisan popularity, especially among critical young voters.
The president’s mention of his marijuana pardons and administrative scheduling review directive during last week’s speech before a joint session of Congress was a key acknowledgement to that end—even if not an entirely accurate accounting of the actions. It was nonetheless well-received, evidenced in part by the massive social media response it elicited.
The popularity of administrative cannabis reform was also underscored in a recent poll that showed how Biden’s marijuana moves stand to benefit him in November. The survey found the president’s favorability spiked after people were made aware of the possibility that cannabis could be rescheduled under the Biden-initiated review.
Harris, for her part, also faced criticism last month after sharing a video where she claimed the administration had “changed federal marijuana policy.” While Biden has issued thousands of simple possession pardons and directed the ongoing review into federal cannabis scheduling, the law itself has not changed at this point, and campaign pledges to decriminalize marijuana have yet gone unfulfilled.
The vice president’s video also showed a map with incorrect information on which states have legalized cannabis to date.
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Following its review, the U.S. Department of Health and Human Services (HHS) advised the Drug Enforcement Administration (DEA) to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).
While that possibility evidently moves the needle for Biden among the general public, equity-focused advocates have stressed the point that it would not legalize marijuana, nor would it do anything to address the decades of harm under prohibition. It would allow state cannabis to take federal tax deductions that they’re currently barred from under an Internal Revenue Service (IRS) code known as 280E, however.
Whether DEA accepts the HHS recommendation is yet to be seen. And while many expect an announcement will happen before the election, the timeline is uncertain. HHS Secretary Xavier Becerra defended his agency’s rescheduling recommendation during a Senate committee hearing on Thursday and later told cannabis lobbyist Don Murphy that he should pay DEA a visit and “knock on their door” for answers about the timing of their decision.
Certain DEA officials are reportedly resisting the Biden administration’s rescheduling push, disputing the HHS findings on marijuana’s safety profile and medical potential, according to unnamed sources who spoke with The Wall Street Journal.
The Biden administration was recently pressed to reschedule marijuana by two coalitions representing military veterans and law enforcement—including a group that counts DEA Administrator Anne Milgram among its members.
On the president’s pardon action, Rep. Barbara Lee (D-CA), co-chair of the Congressional Cannabis Caucus, told Marijuana Moment last month that the clemency should be “extended all the way out, and any unintended or intended consequences of the war on drugs should be dealt with to repair the damage.”
Former Rep. Ed Perlmutter (D-CO), however, told Marijuana Moment that he’s been “very pleased” with Biden’s clemency actions, arguing that the president has “taken some pretty, in my opinion, bold steps.”
Meanwhile, the U.S. Army recently clarified in a branch-wide notice that marijuana possession violations under the military drug code weren’t eligible under the president’s pardons. Sen. John Fetterman (D-PA) called it a “mistake” to exclude military from the relief.
Also, the governor of Massachusetts announced on Wednesday that she is moving to pardon “hundreds of thousands” of people with misdemeanor marijuana convictions on their records, in line with Biden’s push for state-level clemency.
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