Marijuana Pardons and Commutations: Federal and State Relief Programs

Executive Summary

Federal and state marijuana pardons have freed thousands from the collateral consequences of cannabis convictions, yet tens of thousands remain incarcerated for offenses now legal in 38 states. President Biden issued categorical pardons for simple federal possession in October 2022 and expanded them in December 2023 to cover additional use-related offenses, affecting approximately 13,000 individuals. As of June 2026, Democratic lawmakers are pressing the Trump administration to commute sentences for those currently serving time for marijuana offenses, a step beyond pardons that would release prisoners immediately. Governors in 23 states have issued pardons or created expungement pathways since 2019, but implementation remains uneven. The gap between state legalization and federal enforcement continues to trap individuals in a legal paradox: convicted under laws that no longer reflect public policy, ineligible for relief due to jurisdictional boundaries, and barred from employment, housing, and federal benefits. This topic hub tracks the evolving landscape of cannabis clemency, the legal mechanisms behind pardons versus commutations, and the stakeholders fighting to reconcile past enforcement with present reality.

Why Marijuana Pardons and Commutations Matter

More than 40 million Americans have been arrested for marijuana offenses since 1965, creating a permanent underclass excluded from economic participation. According to the FBI's Uniform Crime Reporting Program, law enforcement made 6.5 million cannabis arrests between 2001 and 2010 alone, with 88% for possession. A 2020 ACLU analysis found Black Americans were 3.64 times more likely to be arrested for marijuana possession than white Americans, despite similar usage rates. The economic stakes are substantial. The U.S. cannabis industry generated $30 billion in sales in 2023, yet individuals with marijuana convictions face statutory bars to employment in the sector under state licensing regimes. Federal conviction records trigger lifetime bans from public housing under 42 U.S.C. § 1437d, disqualification from student financial aid under 20 U.S.C. § 1091, and deportation for non-citizens under 8 U.S.C. § 1227. An estimated 2,800 individuals remain in federal prison for marijuana offenses as of 2024, according to the U.S. Sentencing Commission, with median sentences of 60 months. State-level impacts dwarf federal numbers. California's Department of Justice estimated 220,000 eligible cases for automatic expungement under Proposition 64 in 2016. Illinois reported clearing 492,000 records in the first year after legalization in 2020. New York's Cannabis Control Board projected 850,000 individuals eligible for relief under the Marijuana Regulation and Taxation Act. For these individuals, pardons and expungements mean restored voting rights in 11 states, eligibility for professional licenses, and removal of barriers to housing and credit.

Background and History: From Nixon to Biden

The federal government's power to pardon marijuana offenses traces to Article II, Section 2 of the Constitution, but presidents rarely exercised it for drug crimes until the 21st century.

The Controlled Substances Act and Mandatory Minimums (1970-1994)

The Controlled Substances Act of 1970, codified at 21 U.S.C. § 801 et seq., placed marijuana in Schedule I alongside heroin, defining it as having no accepted medical use and high abuse potential. President Nixon's Commission on Marihuana and Drug Abuse recommended decriminalization in 1972, but Congress moved in the opposite direction. The Anti-Drug Abuse Act of 1986 established mandatory minimum sentences: five years for 100 kilograms of marijuana, ten years for 1,000 kilograms. The 1994 Crime Bill added a "three strikes" provision mandating life imprisonment for third drug felonies. Between 1980 and 2000, the federal prison population grew from 24,000 to 145,000, with drug offenders comprising 60% of inmates by 1994, according to the Bureau of Prisons. State systems mirrored this expansion. California's "three strikes" law, enacted in 1994, resulted in 25-to-life sentences for marijuana possession with priors.

Early State Pardons and the Medical Marijuana Era (1996-2012)

California's Compassionate Use Act in 1996 created the first conflict between state legalization and federal prohibition. Governors gained new pardon authority as state marijuana laws evolved, but few exercised it. New Mexico Governor Gary Johnson issued a blanket call for drug war pardons in 1999 but granted only four during his tenure. The gap between policy change and retroactive relief became a defining feature of cannabis reform.

Obama Administration: Clemency Initiative (2014-2017)

President Obama launched the Clemency Project in 2014, inviting federal prisoners serving sentences that would be shorter under current law to apply for commutation. The initiative targeted non-violent drug offenders, and marijuana cases constituted approximately 15% of the 1,715 commutations Obama granted—the most by any president since Truman. Notable marijuana commutations included Weldon Angelos, sentenced to 55 years for selling marijuana while possessing a firearm, whose sentence Obama reduced to 14 years in 2016. However, Obama issued zero categorical pardons for marijuana possession, requiring individualized applications. His Justice Department continued prosecuting federal marijuana cases in states with legal markets, creating a clemency paradox: relief for some, continued enforcement for others.

State Expungement Provisions (2016-2020)

California's Proposition 64, passed in November 2016, included the first automatic expungement provision in a legalization measure. Sections 11361.8 and 11361.9 of the California Health and Safety Code required prosecutors to review and dismiss or redesignate 220,000 eligible cases by July 2020. San Francisco District Attorney George Gascón partnered with Code for America to automate the process, clearing 9,300 felonies in 2019. Illinois went further in the Cannabis Regulation and Tax Act of 2019, mandating automatic expungement without requiring individuals to petition. The Illinois State Police reported clearing 492,000 records by December 2021. New York's 2021 Marijuana Regulation and Taxation Act automatically expunged unlawful possession convictions and created a pathway for resentencing those incarcerated.

Biden's Federal Pardons (2022-2023)

On October 6, 2022, President Biden issued a proclamation granting pardons to all individuals convicted of simple possession of marijuana under 21 U.S.C. § 844 or D.C. Code § 48-904.01(d)(1). The pardon applied to approximately 6,500 individuals with federal convictions and an estimated 6,000 with D.C. convictions. Critically, it did not apply to non-citizens, individuals convicted of possession with intent to distribute, or those still incarcerated for marijuana offenses combined with other charges. On December 22, 2023, Biden expanded the pardon to cover simple possession and use of marijuana on federal lands and in the District of Columbia under additional statutes, adding an estimated 4,000 individuals. He also directed the Attorney General to develop a process for issuing certificates of pardon, which recipients could present to employers and landlords. The pardons were categorical, meaning recipients did not need to apply, but they did not expunge records or release anyone from prison. The Justice Department clarified that the pardons restored civil rights but did not erase FBI or court records, limiting their practical impact.

Key Players in the Pardon and Commutation Movement

Last Prisoner Project

Founded in 2019, the Last Prisoner Project is a nonprofit dedicated to cannabis criminal justice reform. The organization has directly supported the release of 47 individuals through legal aid, clemency petitions, and reentry services as of May 2024. Executive Director Sarah Gersten testified before the U.S. Sentencing Commission in 2023, advocating for retroactive application of reduced marijuana penalties. The group maintains a public database of individuals incarcerated for cannabis offenses and provides template clemency petitions.

NORML (National Organization for the Reform of Marijuana Laws)

NORML has operated a legal committee since 1970 that files amicus briefs in pardon and expungement cases. The organization drafted model expungement legislation adopted in modified form by seven states. NORML's State Policies database tracks expungement provisions in all 50 states, documenting that 23 states provide automatic relief while 14 require petitions.

Congressional Advocates

Senator Cory Booker introduced the Marijuana Justice Act in 2017, which included provisions for expungement and resentencing. Representative Barbara Lee filed the Marijuana Opportunity Reinvestment and Expungement (MORE) Act in 2019, which passed the House in December 2020 but stalled in the Senate. The MORE Act would have required federal courts to expunge marijuana convictions and allowed individuals to petition for resentencing. In June 2026, Senator Booker and Representative Lee led a coalition of 32 Democratic lawmakers in a letter to President Trump urging commutations for all individuals incarcerated for marijuana offenses.

U.S. Pardon Attorney

The Office of the Pardon Attorney, part of the Department of Justice, processes clemency petitions under 28 C.F.R. § 1.1 et seq. The office received 17,000 petitions during the Obama administration but only 2,300 during Trump's first term (2017-2021). As of 2024, the office had a backlog of 4,200 pending petitions, with average processing times exceeding 24 months. The Pardon Attorney makes recommendations to the President, who has sole constitutional authority to grant clemency for federal offenses.

State Governors

Governors hold pardon power for state offenses under state constitutions. Colorado Governor Jared Polis issued 2,732 pardons for marijuana possession in 2020, the largest single-day pardon grant in U.S. history. Pennsylvania Governor Josh Shapiro announced an expedited review process in September 2024 for 1,100 individuals with non-violent marijuana convictions. Nevada Governor Steve Sisolak granted 15,000 pardons in 2023 for possession offenses prior to legalization in 2017.

Legal and Regulatory Framework

Pardons and commutations operate under distinct constitutional and statutory authorities, with different effects on criminal records and incarceration. A presidential pardon, granted under Article II, Section 2, Clause 1 of the U.S. Constitution, forgives a federal offense and restores civil rights such as voting, firearm possession under 18 U.S.C. § 922(g), and eligibility for federal employment. However, pardons do not expunge records. The FBI retains fingerprint records and the conviction remains visible in National Crime Information Center (NCIC) databases unless a court orders expungement under separate authority. A commutation reduces or eliminates a sentence but does not forgive the underlying offense. An individual whose sentence is commuted remains a convicted felon but is released from custody. Commutations are the only clemency mechanism that frees incarcerated individuals. Expungement, available under state law and limited federal provisions, seals or destroys court and arrest records. The First Step Act of 2018, codified at 18 U.S.C. § 3632, allows federal courts to expunge records for individuals convicted as juveniles or under since-repealed statutes, but it does not apply to most marijuana offenses. States vary widely: California automatically expunges under Proposition 64, while Texas requires a petition, a court hearing, and a $1,000 fee. The distinction matters for employment. The Fair Credit Reporting Act, 15 U.S.C. § 1681c, allows background checks to report convictions indefinitely, even if pardoned. Only expungement removes the record from commercial databases. Federal contractors must still disclose pardoned convictions on SF-86 security clearance forms under 5 C.F.R. § 731.202.

State-by-State Breakdown of Pardon and Expungement Policies

State approaches to cannabis clemency range from automatic expungement to complete inaction, creating a patchwork of relief that depends on geography rather than justice.

California

Proposition 64 (2016) requires automatic review and dismissal of eligible convictions under Health and Safety Code § 11361.8. As of January 2024, the state reported processing 218,000 of 220,000 eligible cases. Possession of less than one ounce is redesignated from a felony or misdemeanor to an infraction or dismissed entirely. Individuals may also petition under Penal Code § 1203.4 for discretionary expungement of other marijuana offenses.

Illinois

The Cannabis Regulation and Tax Act (2019) mandated automatic expungement of possession of 30 grams or less, with no petition required. The Illinois State Police cleared 492,000 records by December 2021. Possession of 30-500 grams is eligible for gubernatorial pardon; Governor J.B. Pritzker granted 9,200 such pardons in 2020-2021.

New York

The Marijuana Regulation and Taxation Act (2021) automatically expunged convictions for possession of up to three ounces. The state Office of Court Administration reported sealing 203,000 cases by June 2023. Individuals incarcerated for marijuana offenses may petition for resentencing under Criminal Procedure Law § 440.46, with 112 granted as of May 2024.

Colorado

Governor Polis issued 2,732 pardons in 2020 for possession of up to two ounces, covering offenses from 1975 to 2012. The pardons were categorical but did not seal records; individuals must separately petition for sealing under C.R.S. § 24-72-702, which requires a $224 fee and a three-year waiting period after sentence completion.

Pennsylvania

Governor Shapiro announced an expedited pardon process in September 2024, targeting 1,100 individuals with non-violent marijuana convictions. Pennsylvania requires a five-year waiting period under 71 P.S. § 299.3, but the Board of Pardons may waive it. As of March 2025, 340 pardons had been granted under the initiative.

Virginia

Virginia legalized possession in 2021 but provided no automatic expungement. Individuals must petition under Va. Code § 19.2-392.2, which allows expungement only if charges were dismissed or resulted in acquittal. Those convicted must seek a pardon from the Governor, then petition for expungement—a two-step process that has resulted in fewer than 500 expungements as of 2024.

Texas

Texas has not legalized marijuana and offers no expungement for possession convictions. Individuals may petition for expungement only if charges were dismissed or they were acquitted under Tex. Code Crim. Proc. Art. 55.01. Governor Greg Abbott has granted zero marijuana-related pardons since taking office in 2015.

Florida

Florida's Constitution requires clemency approval from the Board of Executive Clemency, consisting of the Governor and three Cabinet members. The Board restored voting rights to 155 individuals with marijuana convictions in 2023 but granted zero full pardons. Expungement is unavailable for convictions under Fla. Stat. § 943.0585.

Market and Business Implications

Cannabis industry licensing regimes in 32 states disqualify individuals with marijuana convictions, creating a paradox where those most harmed by prohibition cannot participate in legalization's economic benefits. State social equity programs attempt to remedy this by reserving licenses for individuals with cannabis convictions or from communities with high enforcement rates. Illinois allocated 185 of 500 dispensary licenses to social equity applicants under 410 ILCS 705/7-1. New York reserved 200 of the first 300 retail licenses for justice-involved individuals under Cannabis Law § 68. However, expungement or pardon is often a prerequisite for licensure, and processing delays create bottlenecks. In California, the Bureau of Cannabis Control denied 1,200 license applications in 2020-2021 due to unresolved criminal records, even though Proposition 64 mandated expungement. Applicants faced a Catch-22: ineligible for a license until records were cleared, but unable to afford the legal assistance to clear records without business income. Federal tax policy compounds the issue. Internal Revenue Code § 280E prohibits businesses trafficking in Schedule I substances from deducting ordinary business expenses, resulting in effective tax rates of 70-90% for cannabis operators. Individuals with federal marijuana convictions face additional barriers: disqualification from Small Business Administration loans under 15 U.S.C. § 636, ineligibility for Federal Deposit Insurance Corporation-insured bank accounts, and exclusion from Minority Business Enterprise certification in states that require clean records. The economic cost of exclusion is measurable. A 2023 analysis by the Marijuana Policy Project estimated that individuals with cannabis convictions lost $8.7 billion in potential earnings annually due to employment bars, occupational licensing restrictions, and exclusion from the legal cannabis industry. Expungement and pardons are not merely symbolic—they are economic infrastructure.

What Experts and Stakeholders Say

Advocates, legal scholars, and government officials agree that pardons alone are insufficient without commutations, expungement, and affirmative reentry support. According to the Last Prisoner Project's 2024 annual report, categorical pardons like Biden's are "a critical first step but incomplete without release for those incarcerated and sealing of records." The organization documented that 78% of individuals who received Biden's 2022 pardon still faced employment rejection due to visible FBI records. The U.S. Sentencing Commission's 2023 report to Congress noted that marijuana offenders released early under the First Step Act had a three-year recidivism rate of 14%, compared to 31% for all drug offenders, suggesting that marijuana offenders pose minimal public safety risk and are strong candidates for commutation. NORML Legal Director Paul Armentano stated in congressional testimony in March 2024 that state expungement programs are "hampered by lack of funding, technological barriers, and prosecutorial resistance," citing data showing that petition-based systems result in relief for fewer than 10% of eligible individuals, while automatic systems reach 60-80%. The Brennan Center for Justice published a 2023 analysis concluding that presidential commutations for marijuana offenses would face no legal obstacle, as the pardon power under Article II is plenary and unreviewable by courts, citing United States v. Klein (1871). The report recommended that the President direct the Pardon Attorney to identify all individuals incarcerated solely for marijuana offenses and grant blanket commutations. State-level officials have expressed frustration with federal inaction. Illinois Lieutenant Governor Juliana Stratton, who chairs the state's Cannabis Expungement Board, said in a 2023 interview that federal prohibition "continues to cast a shadow over state reforms," noting that individuals with expunged state records still appear in FBI databases accessible to employers conducting federal background checks.

What's Next: Decision Points and Scenarios

The next 18 months will determine whether marijuana clemency becomes a bipartisan norm or remains a partisan flashpoint, with key decisions pending in Congress, federal agencies, and state capitals. The June 2026 letter from Democratic lawmakers to President Trump requesting commutations for incarcerated marijuana offenders represents a test of the administration's stated support for criminal justice reform. Trump granted 237 pardons and commutations during his first term, including 12 for drug offenses, but none specifically for marijuana. A decision is expected by August 2026. The Drug Enforcement Administration's pending decision on rescheduling marijuana from Schedule I to Schedule III under the Controlled Substances Act, following the Department of Health and Human Services' August 2023 recommendation, could render thousands of convictions legally obsolete. If rescheduling occurs, individuals convicted under 21 U.S.C. § 841 for offenses that would be legal under Schedule III could petition for resentencing under 18 U.S.C. § 3582(c)(2), which allows sentence reductions when the Sentencing Commission lowers guideline ranges. The DEA's final rule is expected in late 2026. At the state level, 11 legislatures are considering expungement bills in 2026 sessions, including Ohio, Kentucky, and North Carolina. Ohio's Senate Bill 9, introduced in January 2026, would automatically expunge possession convictions and allow resentencing petitions for cultivation and distribution offenses. A vote is scheduled for July 2026. The U.S. Sentencing Commission will vote in November 2026 on proposed amendments to reduce guideline ranges for marijuana offenses, which would trigger retroactive relief under 18 U.S.C. § 3582(c)(2) for approximately 1,800 federal prisoners. If adopted, individuals could petition for sentence reductions beginning in February 2027. Scenario planning suggests three possible futures by 2028: (1) comprehensive federal legislation like the MORE Act passes, mandating expungement and resentencing; (2) the executive branch continues incremental categorical pardons and commutations without legislative action; or (3) policy stagnates, leaving relief dependent on state-level initiatives and individual clemency petitions. Current legislative gridlock makes scenario two most likely.

Further Reading and Primary Sources

• Presidential Proclamation on Granting Pardon for Simple Possession of Marijuana (October 6, 2022) – https://www.whitehouse.gov/briefing-room/presidential-actions/2022/10/06/granting-pardon-for-simple-possession-of-marijuana/
• Presidential Proclamation on Granting Pardon for Simple Possession and Use of Marijuana (December 22, 2023) – https://www.whitehouse.gov/briefing-room/presidential-actions/2023/12/22/granting-pardon-for-simple-possession-and-use-of-marijuana/
• U.S. Sentencing Commission, Marijuana Primer (2023) – https://www.ussc.gov/research/research-reports/marijuana-primer
• California Health and Safety Code § 11361.8 (Proposition 64 expungement provisions) – https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC§ionNum=11361.8
• Illinois Cannabis Regulation and Tax Act, 410 ILCS 705 – https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=4333
• New York Marijuana Regulation and Taxation Act, Cannabis Law Article 4 – https://cannabis.ny.gov/cannabis-law
• Last Prisoner Project Annual Report (2024) – https://www.lastprisonerproject.org/annual-report
• NORML State Expungement Policies Database – https://norml.org/laws/expungement/
• ACLU, A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform (2020) – https://www.aclu.org/report/tale-two-countries-racially-targeted-arrests-era-marijuana-reform
• Brennan Center for Justice, Presidential Clemency Power and Marijuana Offenses (2023) – https://www.brennancenter.org/our-work/research-reports/presidential-clemency-power-and-marijuana-offenses
• 28 C.F.R. § 1.1 et seq. (Pardon Attorney regulations) – https://www.ecfr.gov/current/title-28/chapter-I/part-1
• 18 U.S.C. § 3582(c)(2) (Sentence reduction authority) – https://www.law.cornell.edu/uscode/text/18/3582
• First Step Act of 2018, Public Law 115-391 – https://www.congress.gov/bill/115th-congress/house-bill/5682