Biden's 2022 Marijuana Pardons and Federal Prohibition's Slow Unwinding

On October 6, 2022, a little under a month before a midterm election, the White House released a short video and a proclamation that did something no president had done before: it pardoned every person convicted of simple possession of marijuana under federal law. The announcement came in three parts. There was the pardon itself. There was a request to the nation's governors to do the same for state convictions. And there was a quieter third item, the one that turned out to matter most over the next four years: President Biden asked the Secretary of Health and Human Services and the Attorney General to review how marijuana is classified under federal law. The first two parts made the headlines. The third set a slow machine in motion, and that machine is the real story of how a country that now sells cannabis legally in roughly half its states still treats it, on paper, as one of the most dangerous drugs in existence.

In short: Biden's 2022 pardons forgave federal convictions for simple marijuana possession, but they freed no one from federal prison, erased no records and touched no state cases. The bigger lever was the scheduling review he ordered, a process that shows how hard it is to unwind a prohibition written into law in 1970.

What the proclamation covered, and who it missed

Start with the fine print, because the fine print is where a pardon lives. The October 2022 proclamation covered U.S. citizens and lawful permanent residents convicted of simple possession under the federal Controlled Substances Act or the parallel provision of the District of Columbia code. Simple possession means having marijuana for your own use. It does not mean selling it, growing it for sale, or carrying it across a border with intent to distribute. Those offenses were left alone.

The number of people covered was real but modest. The U.S. Sentencing Commission, which keeps detailed federal sentencing data, estimated that several thousand people had federal convictions for simple marijuana possession over the prior three decades, with thousands more convicted under D.C. law. That sounds like a lot until you set it beside the scale of marijuana enforcement in America, which has always been overwhelmingly a state and local affair. Most people arrested for a joint were arrested by a city police officer or a county deputy and prosecuted in a state court. A federal pardon cannot reach them.

The other thing the proclamation could not do was open a cell door. When the order was issued, no one was serving time in federal prison solely for simple possession of marijuana. Federal prosecutors had largely stopped bringing those cases years earlier; most of the people convicted federally had been caught on federal land, at a border checkpoint or in some other setting where federal jurisdiction applied, and many had received probation or short sentences long before.

In December 2023 the administration widened the pardon. The second proclamation added attempted possession and use of marijuana, and covered offenses committed on federal property and under certain federal regulations. Again, the people helped were real people with real records, and again, the change was measured in thousands rather than millions.

None of this makes the gesture empty. A presidential pardon is an official act of forgiveness by the head of state, and the Justice Department's Office of the Pardon Attorney set up an application so people covered by the proclamations could get a certificate proving it. That piece of paper can matter in a job interview, an apartment application, or a licensing board hearing. But it is worth being honest about what the act was: a symbol with a narrow legal footprint, pointed at a much larger problem.

What a pardon does not erase

There is a common misunderstanding that a pardon makes a conviction disappear. It does not. A pardon forgives the offense and restores certain rights, but the record of the arrest and the conviction still exists. Background checks can still show it. The conviction happened; the pardon is a later official statement that the government no longer holds it against you.

Expungement or sealing is a different remedy. It removes the record from public view or destroys it, and it is mostly a creature of state law. Federal law, by contrast, has very few expungement paths for adults. That gap is why reform advocates kept pressing Congress after 2022: a pardon without expungement leaves a person carrying a document that says, in effect, "the government forgives me for the thing that will still show up on your screen."

Immigration is another place where the limits bite. For noncitizens, drug convictions can carry severe immigration consequences, and how a pardon interacts with those consequences is technical and depends on the statute involved. Anyone in that situation needs a lawyer who handles immigration cases; this post is general information, not advice for a particular case.

So the pardons did three things well. They removed the federal government's formal condemnation of a specific act. They gave several thousand people a document that can help them. And they put the moral weight of the presidency behind the idea that a possession conviction should not follow someone forever. What they did not do was change the law that made possession a federal crime in the first place.

The 1970 law and the five schedules

That law is the Controlled Substances Act, signed in October 1970 as part of a broader drug control bill. It sorted drugs into five schedules. Schedule I is the strictest: drugs that, in the law's terms, have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Marijuana was placed in Schedule I, alongside heroin. Cocaine and methamphetamine, which have limited medical uses, sit in Schedule II.

Congress meant the initial placement of marijuana to be provisional. The same era produced a federal commission on marijuana, which reported in 1972 and recommended that possession of small amounts for personal use stop being a crime. The recommendation was set aside, and the provisional placement became the permanent one.

The schedules can be changed in two ways. Congress can pass a law moving a drug, or the executive branch can do it through rulemaking. In the rulemaking path, the Drug Enforcement Administration, part of the Justice Department, has the final say on scheduling, but it must ask Health and Human Services for a scientific and medical evaluation, and HHS's view on the science is binding on the DEA. That is why Biden's 2022 request went to both departments. It was an invitation to run the administrative process from the top.

How the scheduling review crawled forward

The review did move. In August 2023, HHS sent the DEA its recommendation that marijuana be moved from Schedule I to Schedule III, a category that includes drugs such as ketamine and some anabolic steroids and is reserved for substances with accepted medical uses and moderate or low potential for physical dependence. In May 2024, the Justice Department published a proposed rule to make that change and opened it to public comment. Tens of thousands of comments poured in from patients, business owners, researchers, police groups and ordinary users.

Then the process did what administrative processes do. A formal hearing before an administrative law judge was scheduled, then postponed in January 2025 amid disputes over which witnesses could take part and how the DEA had handled the proceedings. The administration that started the review left office before the rule was final. Whatever has happened since, the lesson for the reader is the shape of the thing: a single scheduling change, with the backing of the president and a formal recommendation from the government's own health scientists, took years and ran into procedural walls at nearly every stage.

This is not a conspiracy. It is how the system is built. Rulemaking requires a record, a comment period, responses to comments and, for scheduling, often a trial-like hearing. Each step exists to protect against arbitrary government action, which is a value progressives usually defend. The same safeguards that slow down a deregulatory rule we oppose also slow down a reform we support. Being clear-eyed about that is better than pretending the delay is pure bad faith.

What Schedule III would and would not change

It helps to be precise about what a move to Schedule III would mean, because the phrase "rescheduling" is often heard as "legalization." It is not.

Under Schedule III, marijuana would still be a controlled substance. Selling it without the federal registrations that pharmacies and drug makers hold would still be a federal crime. The state-licensed dispensaries operating in about half the country would still be operating outside federal law. Possession for personal use without a prescription would still be unlawful under federal law.

What would change is meaningful in other ways. Researchers would face fewer barriers to studying the plant. And a provision of the federal tax code, section 280E, which bars businesses trafficking in Schedule I or II substances from deducting ordinary business expenses, would no longer apply to cannabis companies. That provision has meant state-legal cannabis businesses pay federal income tax at effective rates far higher than other businesses, because they cannot deduct rent, payroll or most other costs. For small operators, and especially for the equity licensees that some states set aside for people harmed by the drug war, the tax relief would matter more than almost anything else on the list.

The honest progressive case, then, is that rescheduling is a useful step that should not be oversold. The bigger questions, such as removing marijuana from the schedules entirely, expunging old records and deciding how a legal market should be regulated and taxed, belong to Congress.

Congress has voted, and stalled

Congress has not been idle. The House passed the MORE Act, which would remove marijuana from the Controlled Substances Act and provide for expungement of federal convictions, in December 2020 and again in April 2022. Neither version passed the Senate. A separate bill to let banks serve state-legal cannabis businesses without federal penalty has passed the House in various forms several times and stalled in the Senate each time.

The opposing case deserves a fair hearing. Some public health researchers worry about the rising potency of commercial cannabis, the marketing of edibles that look like candy, and the risks for adolescents and for people prone to psychosis. Some law enforcement groups argue that legalization complicates impaired-driving enforcement, since there is no simple roadside equivalent of a breath test for alcohol. Some conservatives who are otherwise skeptical of federal power still oppose legalization on moral grounds or out of concern about addiction.

These are not frivolous concerns, and a serious reform agenda answers them rather than waving them away. The answer, I think, is that prohibition has not prevented any of these harms. People use cannabis at high rates whether it is legal or not; the question is whether the product is tested and labeled, whether sales to minors are policed by licensing regulators, and whether the money flows to taxed businesses or to illegal ones. Potency limits, advertising rules, child-resistant packaging and research funding are all easier to set inside a legal framework than outside one.

The racial ledger that started the push

The reason this issue sits on a criminal justice page rather than a business page is the record of who was arrested. For decades marijuana possession was one of the most common arrests in the country. The American Civil Liberties Union, analyzing FBI and census data, found that Black Americans were several times more likely than white Americans to be arrested for marijuana possession, even though surveys showed the two groups used marijuana at similar rates.

Those arrests had long tails. A possession conviction could cost someone a student loan, a job, a lease, custody time with a child or, for a noncitizen, the right to stay in the country. Many people pleaded guilty to minor charges to get out of jail quickly, without understanding what would follow them.

That history explains why so many state legalization laws include expungement and resentencing provisions, and why some governors took up Biden's 2022 request. In Oregon, Governor Kate Brown pardoned more than 45,000 convictions for possession of small amounts of marijuana in November 2022. Other states built automatic record-clearing into their legalization laws so people did not have to apply, hire a lawyer, or even know they were eligible. Automatic clearing matters because petition-based systems reach only a fraction of the people who qualify; the ones who already have resources are the ones who fill out the forms.

What legalization in the states has taught

The states have been running the experiment since voters in Colorado and Washington approved recreational marijuana in November 2012. Since then, legalization has passed through ballot measures and legislatures in red, blue and purple states. It has also lost; in 2024, voters in Florida gave a legalization amendment a majority but short of the 60 percent the state constitution requires, and voters in North Dakota and South Dakota rejected their measures.

The results so far are mixed in the ways anyone who studies policy would expect. Arrests for possession have fallen sharply in legal states. Tax revenue has funded schools, treatment and community grants. Illegal markets have persisted, especially where taxes and licensing costs pushed legal prices high. Some places were slow to license enough stores, and that gap kept the illicit trade alive; progressives who prefer cautious, tightly limited licensing should notice that caution has a cost when it leaves the field to unregulated sellers.

The lesson is not that legalization solves everything. It is that the federal law no longer matches how Americans live, and the mismatch causes its own harms: businesses that cannot use banks, patients whose medicine is federally illegal, veterans whose doctors at the Department of Veterans Affairs face limits on what they can recommend, and people who still carry old convictions for something now sold in a shop down the street.

What you can do

The pardons showed that executive action can move faster than Congress, and also how little it can reach. Most of the remaining work sits with lawmakers and with state systems that clear records. Here is where your effort counts.

• Ask your members of Congress where they stand on expungement. The representatives finder gives you your House member's and senators' phone numbers and contact forms, and shows their latest votes. Ask a specific question: would they support a bill that removes marijuana from federal schedules and clears old federal possession records automatically?
• Watch for the next scheduling comment window. Any federal rule that changes marijuana's classification goes through public comment. The open comment periods page lists federal rules accepting comments now, soonest deadline first, with a short guide to writing one that an agency has to read and answer.
• Push your state on automatic record clearing. If your state legalized but still makes people petition to clear old convictions, that is a fixable gap. Find groups working on it through the state directory of justice reform and legal aid nonprofits.
• Help someone use the remedies that already exist. Legal aid clinics run record-clearing days in many cities. Volunteering at one, or simply telling a neighbour it exists, can change a person's job prospects within a few weeks.
• Follow the broader reform fight. The criminal justice reform topic page gathers news on sentencing, policing and drug law so you can see what is moving and where.

A prohibition written into federal law in 1970 will not unwind in one proclamation. It unwinds in the slow work of comment letters, ballot measures, record-clearing clinics and votes counted one member at a time. That work is less dramatic than a video from the White House. It is also the part that reaches the people a pardon could not.