Governors Split on Biden’s Call to Pardon Low-Level Pot Offenders

This story was originally published by Stateline, an initiative of The Pew Charitable Trusts.

AUSTIN, Texas — When President Joe Biden earlier this month granted blanket pardons to more than 6,500 Americans convicted of marijuana possession under federal law, he urged governors to pardon the much greater number of low-level marijuana offenders in their states.

But the response from governors has been mixed.

Some Democratic governors are taking steps toward heeding Biden’s call — or note that they’ve already moved to erase minor drug convictions that can bar former offenders from jobs, housing and student financial aid. Other governors, from both parties, have pointed out that they can’t issue blanket pardons, since pardoning power resides with a board or commission.

For their part, many Republican governors seized the opportunity to blast Biden as soft on crime. 

“Texas is not in the habit of taking criminal justice advice from [the] leader of the defund the police party, and someone who has overseen a criminal justice system run amuck [sic] with cashless bail and a revolving door for violent criminals,” Renae Eze, press secretary for Texas Republican Gov. Greg Abbott, said in a statement. 

(Biden has said that cash bail “criminalizes poverty.” He has consistently opposed calls to defund the police.)

But even conservative states headed by Biden’s most caustic critics — including Texas — are rapidly easing their once-rigid opposition to marijuana use.  

Though marijuana use is still illegal in Texas, prosecutors, police departments and municipal governments have pulled back on pursuing offenders: According to a review conducted for Stateline by the Texas Office of Court Administration, misdemeanor marijuana convictions dropped from 25,671 in fiscal 2018 to 7,531 in fiscal 2022.

Abbott doesn’t have the authority to grant pardons unless they are recommended by the Texas Board of Pardons and Paroles. But Eze said even the self-styled “tough-on-crime” governor favors reducing the penalties for low-level marijuana offenses. 

“Gov. Abbott believes that prison and jail is a place for dangerous criminals who may harm others,” Eze told Stateline, “and possession of a small amount of marijuana is not the type of violation that we want to stockpile jails with.”

Arkansas Republican Gov. Asa Hutchinson, former administrator of the U.S. Drug Enforcement Administration, also criticized Biden’s move. Biden, Hutchinson said in a statement, “has waved the flag of surrender in the fight to save lives from drug abuse and has adopted all the talking points of the drug legalizers.” 

“As Governor, I have issued hundreds of pardons to those who have been convicted of drug offenses,” Hutchinson said. “But in this time of rising crime, there should be a clear record of law-abiding conduct before pardons are issued.”

But Arkansas is one of five states — Maryland, Missouri, North Dakota and South Dakota are the others — where voters next month will decide whether to legalize the sale of marijuana for recreational use. Nineteen states and the District of Columbia already have legalized recreational marijuana. Medical cannabis is legal in 37 states plus D.C.

In Kentucky and North Carolina, where marijuana remains illegal and Republicans hold large legislative majorities, Democratic governors have requested broad reviews of possession convictions.

Earlier this month, Kentucky Democratic Gov. Andy Beshear said he asked the Administrative Office of the Courts to tell him how many people have possession-only convictions on their records. 

“Having a misdemeanor on your record isn’t a small thing," Beshear said at a news conference. "We want to know how many people [pardons] would apply to.”

In North Carolina, Democratic Gov. Roy Cooper earlier this month expressed support for Biden’s move at a meeting of a task force he created in 2020 to examine racial equity and criminal justice. The task force determined that 61% of the 8,520 low-level marijuana convictions in 2019 were against non-White defendants, even though White and Black people use marijuana at comparable rates. 

The panel recommended decriminalizing possession of small amounts of marijuana, but North Carolina lawmakers have not acted.

"Conviction of simple possession can mar people's records for life and maybe even prevent them from getting a job," Cooper said at the meeting of the panel. “The General Assembly didn’t pass your recommendations on this last session, but I believe they should. North Carolina should take steps to end this stigma.”

Cooper said he has asked lawyers to determine whether he can and should issue pardons to people convicted of low-level offenses. In North Carolina, the governor has far-reaching pardoning power. 

In Colorado, which in 2012 became one of the first two states (Washington was the other) to legalize recreational marijuana, Democratic Gov. Jared Polis said he was “thrilled” with Biden’s proclamation. Polis said the president was following “Colorado’s lead” after Polis granted mass pardons in December 2021 to 1,351 people who had been convicted of possessing two ounces or less of marijuana. 

And in Pennsylvania, where simple marijuana possession is still a crime, Democratic Gov. Tom Wolf in early September launched a 30-day fast-track program that invited those with low-level marijuana possession convictions to apply for pardons with the state’s pardons board.  

Described as a “one-time, large-scale pardon effort,” the program had received more than 2,700 applications by the Sept. 30 deadline. The Board of Pardons will review individual cases in December and make its recommendations to Wolf, who is not authorized to grant pardons without recommendations from the board.

At the heart of the pardons issue is whether people should be burdened with a blemish on their records for what is increasingly regarded as a social practice or medical need, rather than a criminal offense.

Jax Finkel James, state policy manager for the National Organization for the Reform of Marijuana Laws (NORML), said that in her frequent testimony before Texas lawmakers, she highlights the hardships faced by Texans arrested or convicted for marijuana possession.

“You’ll see a lot of people who have offered testimony on how it has affected their lives,” ranging from being turned down for a job or applying for a loan, she said.

Austin Zamhariri, a 39-year-old bartender in Haltom City, a Fort Worth suburb, recalls the years of difficulty he endured after a police officer found marijuana seeds and sticks in his car after stopping him for speeding in 2010. He was arrested, fingerprinted and charged with marijuana possession. He spent the night in jail and had to pay more than $200 to retrieve his impounded car.

The case against him was dropped after he went through a year of deferred adjudication, the equivalent of probation. But his brush with the law still hangs over him.

“Even to this day, 12 years later, if you look up my personal record, you’ll still see that arrest for marijuana in 2010,” Zamhariri said. That record has undermined him when he’s tried to buy a house, get an education or apply for loans.  

“Now, it’s not such a big deal. Nobody cares. But at the time, it was pretty catastrophic.”

Zamhariri now heads Texas Cannabis Collective, a nonprofit that supports marijuana legalization. He is grateful for Biden’s move, but he would like to see greater pressure on governors such as Abbott to grant clemency “for something that is legal in half the country.”

Even though Abbott’s pardoning power is limited, he said the governor could push the Texas Board of Pardons and Paroles to act. “If the governor strongly stated that he would like to see something like that happen, it would mean a lot,” he said.