• Bennett Nuss

Legal tracking: Blanket pardons - A revolutionary policy idea or merely missing the point?


Image courtesy of Jose Luis Magana/AP at https://www.npr.org/2022/10/10/1127708285/marijuana-pardon-biden-black-people-war-on-drugs-harm.

On Oct. 6, 2022, President Biden issued the following proclamation on the White House website:


“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.”


This decision was met with great fervor online, with defenders of the policy stating that it was just and fair to the people serving sentences for offenses which are no longer crimes in large swaths of the country, and was a way of curbing incarceration for non-violent offenders. On the other hand, critics were quick to denounce the pardon as an abuse of the Article II pardon power for political purposes.


Needless to say, this pardon is a considerable departure from traditional federal policy on this issue, as possession of marijuana containing over 0.3% THC has been prosecuted as a felony since the institution of the Controlled Substances Act of 1970.


The number of people actually affected by the Biden administration’s proclamation is considerably small. Over 99% of inmates serving a federal prison sentence for a drug-related charge are sentenced for trafficking, not mere possession. About 6,500 people are scheduled to be released under this program who have federal convictions for marijuana possession between 1992 and 2021. Most of those released were convicted in Washington.


Pardoning people for a criminal behavior that is legal in 19 states, Washington and Guam is arguably a policy worth pursuing. However, there are hidden ramifications of this policy which are not readily apparent, specifically in that those released from prison under this pardon have very little government support upon re-entering society.


The United States has one of the highest recidivism rates in the modern world; 44% of formerly incarcerated people return to prison after serving a sentence. While some released under this program may have the entirety of their criminal records expunged, not all will. People who have previously served a prison sentence have considerable difficulty in finding legal employment post-incarceration; they are unemployed at a rate five times higher than the general population. Even though the crime of marijuana possession will be stricken from the records of those currently incarcerated, it is rather hard for anyone to explain away time gaps in their employment history which were spent in federal penitentiary, even should they seek legal employment. Considering that the greatest predictor for recidivism is poverty, the great difficulty in finding gainful employment heightens the risk of returning to prison in short order.


Many people who are returning from a prison sentence may not have a home to return to. Their leases on apartments may have expired; roommates, significant others or spouses may have moved on; possessions may have been repossessed, et cetera. While those people who are being released on this pardon may have more of this infrastructure to return to, due to a presumably short prison stint, it is still fair to presume that many will not.


An observant reader may have thought the following to themselves more than once over the course of this article: “This is not the fault of the Biden administration. These problems existed before the pardon!” That is entirely the point. Pardoning a few thousand people for simple possession is an ineffectual treatment for the severe and systemic criminal justice issues in the United States. This pardon does nothing to fix recidivism or to help those who have already paid their debt to society effectively resume their lives outside of prison. Resolving the aforementioned issues could improve the lives of millions, which have been ignored for decades by the federal and state governments.


Until those problems are addressed, blanket pardons for less-contentious crimes are little more than sterile attempts to treat the symptoms of a greater cancer. Criminal justice practitioners should urge for actual examination and reform of the problems that surround our vaunted profession as performative measures are too little too late.


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