The Biden administration is taking a first step toward granting presidential relief to hundreds of people on home confinement for federal drug convictions, with the Federal Bureau of Prisons (BOP) asking eligible individuals to get the process started by filing out clemency applications.
People with drug convictions who have up to four years left in their sentences were able to enter into home confinement under the coronavirus pandemic relief bill the CARES Act.
Weldon Angelos, who received a pardon for his own marijuana-related conviction from President Donald Trump last year and continues to work with the current administration on criminal justice reform, told Marijuana Moment that about 1,000 people were asked to report to their designated halfway houses to fill out the clemency form in recent days.
About 8,300 federal inmates were allowed to temporarily transition to home confinement amid the coronavirus pandemic last year, but the Justice Department under the Trump administration issued a memo saying that most would be required to return to prison when the health crisis is declared over. Biden DOJ officials agreed with that legal reasoning, but this latest move indicates that the administration is looking for ways to keep certain people with drug convictions from having to go back behind bars.
White House Press Secretary Jen Psaki was asked about the BOP action during a briefing on Friday. She deferred to the Justice Department for more answers but said “the president has been clear about his openness to using clemency powers.”
“I wouldn’t say that’s an assessment of decisions made—and certainly, targeting those toward non-violent drug offenders [is in line with the president’s position],” Psaki said.
Marijuana Moment reached out to BOP and the Justice Department for clarification, but representatives did not respond by the time of publication.
What’s not clear is who exactly will be eligible for the commutations. And some advocates feel that the administration has lacked transparency on this latest relief development.
ACLU Deputy National Political Director Udi Ofer told Politico that “through the anecdotal information we’re seeing, we are worried that the White House is viewing this issue too narrowly and unnecessarily restricting the category of people being asked to apply for clemency.”
Psaki said during a prior briefing last month that Biden is “exploring multiple avenues to provide relief to certain nonviolent drug offenders, including through the use of his clemency power.”
The administration is “working hard every day to reform our justice system in order to strengthen families, boost our economy, give people a chance at a better future,” she said. “As part of this, the president is deeply committed to reducing incarceration, helping people successfully reenter society. And he has said too many people are incarcerated—too many are black and brown.”
Psaki added at the time that there was nothing actionable to preview at that point, but said the president is “looking at a range of avenues” for relief. The fact that, as a senator, Biden played a key role in enacting punitive drug laws that contributed to the mass incarceration he’s now considering steps to resolve did not come up during the exchange.
Clemency actions that the president could take include commuting the sentences of those who are currently incarcerated or on home confinement, or pardoning people whose records impede their abilities to get jobs, vote or otherwise participate in society.
Biden has faced criticism from drug policy reform advocates who’ve grown frustrated that he’s yet to make good on campaign promises such as decriminalizing marijuana. While his opposition to adult-use legalization remains a challenge on its own, they feel he should at least take steps to enact modest reform.
The president also campaigned on expunging prior cannabis records and respecting the rights of states to set their own laws.
Since taking office, however, his administration has not made progress on any of those pledges and has instead fired its own White House staffers over marijuana and sought to extend a budget provision that has blocked Washington, D.C. from legalizing cannabis sales.
In April, Psaki was pressed on Biden’s clemency promise for people with federal marijuana and said that process will start with modestly rescheduling cannabis—a proposal that advocates say wouldn’t actually accomplish what she’s suggesting.
Moving cannabis from Schedule I to Schedule II under the Controlled Substances Act, as Biden proposed on the campaign trail, wouldn’t facilitate mass clemency given that being convicted for crimes related to drugs in that slightly lower category—which currently includes cocaine—also carries significant penalties.
Sen. Bernie Sanders (I-VT) said during a recent interview that Biden could and should use executive authority to end federal marijuana prohibition on his own—but the two of them have “differences” when it comes to drug policy. There are, however, legal questions about whether a president could actually legalize cannabis unilaterally given existing statutes.
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