President Joe Biden pardoned domestic victims of the War on Drugs with federal simple marijuana possession convictions on Thursday. In doing so, he added that state governors should do the same as most marijuana possession arrests and convictions occur beyond the reach of the president’s pardon power in state and local jurisdictions.
“Just as no one should be in a federal prison solely for possessing marijuana, no one should be in a local jail or state prison for that reason, either,” Biden tweeted.
Few sitting governors responded to Biden’s request. That is probably because most states with sitting Democratic Party governors – those most likely to follow the president’s lead – already have some legal process to expunge, seal or reduce at least some, if not all, of the low-level marijuana convictions in their states. Fifteen of the 22 states held by Democrats have such policies in place, and many of these governors praised Biden’s action while noting they had already done the same.
In the remaining seven states of Kansas, Kentucky, Louisiana, Maine, North Carolina, Pennsylvania and Wisconsin, which do not have a pardon process in place, a handful of governor’s offices responded to inquiries from HuffPost following Biden’s announcement.
Kentucky Gov. Andy Beshear (D) “agrees that no one should be in jail simply because of possession of marijuana,” Scottie Ellis, his deputy communications director, said over email. But, she added, “The White House had not alerted and has not briefed our office on exactly what his pardons may require and the specific details of what they will and will not cover.”
Beshear established a Medical Cannabis Advisory Committee in April to review options for any executive action he could take toward legalizing medical marijuana in the state.
He is now looking to review the details of Biden’s pardons and whether something similar could apply in Kentucky “in his larger analysis on medical cannabis,” Ellis said. She added that the “vast majority” of Kentuckians favor legal, medical marijuana; a recent poll put the number at 90%.
North Carolina Gov. Roy Cooper (D) established a Task Force for Racial Equity in Criminal Justice in 2020 that later recommended decriminalizing the possession of small amounts of marijuana. Biden’s actions “are in line” with those recommendations, Cooper said in a statement provided to HuffPost.
“I have also asked our lawyers to examine North Carolina law regarding simple possession of marijuana convictions and pardons to determine if there is an action we can and should take,” Cooper continued in the statement.
“I think he did the right thing,” Louisiana Gov. John Bel Edwards, a Democrat, said at a press conference on Friday. “We’ve looked back at our constitution and laws in Louisiana, and unlike many states, I do not have plenary authority to grant a pardon.”
The legislature may need to pass a law or amend the constitution to enable Edwards to issue pardons similar to Biden’s.
“We’re going to be looking at it going forward,” he added. “And working obviously with members of the legislature to take their temperature and see if there’s an appetite for moving in this direction.”
And in Pennsylvania, Democratic Gov. Tom Wolf touted the policy he and Lt. Gov. John Fetterman, who is running for the state’s open Senate seat, announced on Sept. 1 to issue pardons for certain minor, non-violent marijuana-related convictions at the next meeting of the Board of Pardons in October.
“I just coordinated a one-time, large-scale pardon effort for people with certain minor, non-violent marijuana convictions,” Wolf tweeted following Biden’s announcement. “Under Pennsylvania law, I don’t have unilateral pardon authority — but I’m doing everything I can to right the wrongs of the failed war on drugs.”
At least one Republican governor, New Hampshire’s Chris Sununu, responded to Biden’s call by saying that he is reviewing Biden’s actions. Marijuana remains illegal in New Hampshire, but the state has decriminalized the possession of small amounts, expanded medical marijuana and created a process to allow those convicted of marijuana offenses to appeal to get those convictions expunged.
There are currently 20 states that have already enacted policies that enable those convicted of low-level marijuana offenses to expunge, seal or reduce them. These include 16 states where marijuana is legal and another four states where it is decriminalized.
The 16 states where marijuana is legal and a process of expungement – automatic or on an individual basis – exists include Arizona, California, Colorado, Connecticut, Illinois, Massachusetts, Michigan, New Jersey, New Mexico, Nevada, New York, Oregon, Rhode Island, Vermont, Virginia and Washington. Twelve of these states have Democratic governors, while four have Republicans.
There are just two states – Alaska and Maine – where marijuana is legal, but there appears to be no process for the expungement of past convictions. Alaska has a Republican governor, while Maine’s is Democratic.
Another four states where possession of small amounts of marijuana has been decriminalized now allow a process to expunge and seal convictions for possession crimes since decriminalized. These are Delaware, Hawaii, Minnesota and New Hampshire. All but New Hampshire have Democratic governors.
North Dakota also allows those convicted of low-level marijuana possession offenses to petition the governor for a pardon.
Additionally, voters in Arkansas, Maryland and Missouri are voting in November on initiatives that would legalize marijuana and expunge certain prior convictions. Republicans currently govern these states, but Maryland is almost certain to elect Democrat Wes Moore as governor in November.
“Maryland voters have the opportunity to legalize recreational marijuana on the ballot this November,” Moore tweeted Thursday. “As governor, I will fight to expunge the records of those arrested for marijuana possession.”
Voters in North and South Dakota will also be deciding on ballot initiatives to legalize marijuana in their respective states, but neither initiative provides a process for marijuana conviction expungement.
Like in Pennsylvania, not all state governors have the unilateral pardon power Biden does as president. This is the case in Alabama, Georgia, Idaho, Minnesota, Nebraska, South Carolina and Utah.
In Minnesota, for example, pardons must be unilaterally approved by the Board of Pardons, which includes the governor, the attorney general and the chief justice of the state supreme court. Or, in Alabama, the process runs through an independent parole board appointed by the governor.
Other states require pardons issued by the governor to be reviewed and approved by parole boards. This limits the ability of governors to follow Biden’s suggestion.
While it may be difficult for the few Democratic governors whose states don’t have a process in place to expunge marijuana convictions to act, the issue immediately became a campaign promise of Democratic gubernatorial candidates.
“As governor, I will decriminalize marijuana possession in the state of Georgia and support prioritizing the expungement of marijuana possession records,” Democratic gubernatorial candidate Stacey Abrams tweeted.
“When I’m governor, we will finally legalize marijuana in Texas and expunge the records of those arrested for marijuana possession,” former congressman and Texas Democratic gubernatorial candidate Beto O’Rourke tweeted.
“It’s time to legalize marijuana here in SC and expunge the records of people with low-level marijuana convictions,” South Carolina Democratic gubernatorial candidate Joe Cunningham, a former congressman, tweeted. “And I’m the only person running for governor who will.”
The legalization of marijuana remains broadly popular, with most polls showing two-thirds in support.