President Joe Biden’s pardon of his son, Hunter, for drug-related and other crimes is drawing cries from criminal justice and marijuana policy reformers, who call the action hypocritical and say the president should do more to grant clemency to cannabis prisoners before his term expires next month.
“In pardoning Hunter Biden, the president noted that despite believing in our justice system, sometimes the outcome of that process is not fair or just,” said Sarah Gersten, executive director and general counsel for Last Prisoner Project (LPP), a nonprofit that focuses on drug policy reform. “That is certainly the case for the nearly 3,000 cannabis prisoners who remain incarcerated federally for activity that has been widely legalized.”
Biden over the weekend pardoned his son, who had been convicted on felony gun and tax charges earlier this year. Three of those convictions were related to lying on a federal form about drug use when buying a gun in 2018, a time when he was using crack cocaine.
In a statement, the president said his pardon reflected the belief that his son was “being selectively, and unfairly, prosecuted,” noting that “people are almost never brought to trial on felony charges solely for how they filled out a gun form.”
That’s a claim that even some Republicans have echoed. Following the convictions, Rep. Thomas Massie (R-KY) said Hunter Biden “might deserve to be in jail for something, but purchasing a gun is not it.”
“There are millions of marijuana users who own guns in this country, and none of them should be in jail for purchasing or possessing a firearm against current laws,” the congressman said.
Then-Rep. Matt Gaetz (R-FL), a supporter of cannabis reform, said at the time that the “Hunter Biden gun conviction is kinda dumb.”
Nevertheless, advocates point out that thousands of people are still behind bars for cannabis-related offenses.
Weldon Angelos, who had a cannabis crime pardoned by then-President Trump in 2020 and has continued to advocate for similar relief for others, said that the pardon of Hunter Biden “highlights a glaring hypocrisy in our justice system.”
“With only two months left in office, the president has yet to fulfill his promise to free people still incarcerated for marijuana offenses, many of whom are people of color without the privilege and connections Hunter enjoys,” Angelos told Marijuana Moment. “It’s disheartening to see once again how the connected and powerful receive better treatment, while so many others remain trapped in a system that refuses to treat them equally.”
“Shockingly, Biden has now pardoned more turkeys than people who are locked up for marijuana offenses—making his inaction on this critical issue even more appalling,” he added.
“While there is still time for Biden to extend the same mercy he just granted his son to others, it’s likely these individuals will have to wait for the next president to deliver justice,” Angelos continued. “I am hopeful that Donald Trump will show more mercy to those unjustly incarcerated for marijuana than Biden has.”
It’s unclear whether others with cannabis- or drug-related crimes will see further clemency relief from the Biden administration. Following the pardon, White House Press Secretary told reporters on Monday that more pardons can be expected before Biden leaves office next month.
Even before Biden’s pardon, lawmakers and advocates alike had been pushing the president to do more to provide relief for people behind bars on cannabis-related charges.
Last month, for instance, a coalition of 67 Democratic members of Congress called on him to expand on his executive clemency work in the final months of his term, citing his past marijuana pardons as an example of his ability to provide “life-changing” relief to Americans.
Biden has so far limited his marijuana pardons to certain people who’ve committed federal marijuana possession offenses, none of whom were actively incarcerated. Advocates have urged him to grant wider relief to those still serving time in federal prison over nonviolent cannabis convictions.
Biden has nevertheless repeatedly taken credit for the pardons as well as for a decision to review the legal status of marijuana.
“We started the process of reclassifying marijuana and pardoned thousands of convictions from mere possession,” Biden said at an event in September, “because no one should be jailed for simply using marijuana or have a barrier to jobs, housing, loans or other opportunities because of that.”
Morgan Fox, political director for the cannabis advocacy group NORML, told Marijuana Moment that while the Biden administration’s accomplishments have been historic, there’s still room to do more.
“President Biden has done more than any sitting president before him on cannabis justice,” he said, “but there is still much he can do—particularly expanding the scope of his mass pardons and granting clemency to dozens of applicants who are unjustly incarcerated for federal cannabis violations—to help cement that legacy.”
Failure to do more, “while simultaneously pardoning his son for behavior that his Justice Department has repeatedly argued should remain illegal for cannabis consumers and patients, would severely tarnish that legacy,” Fox added. “Taking immediate additional actions on cannabis-related pardons and clemency is the right thing to do and would generate little or no political backlash against either him or his party.”
Separately, a number of federal courts are reviewing the government’s ban on gun ownership and possession by cannabis users to determine whether it’s constitutional.
Last month, for example, a panel of judges on the U.S. Court of Appeals for the Tenth Circuit heard oral arguments in a case that centered on the firearm ban.
That appeal follows a district court’s dismissal of an indictment against Jared Michael Harrison, who was charged in Oklahoma in 2022 after police discovered cannabis and a handgun in his vehicle during a traffic stop.
The lower court’s ruling said the statute banning “unlawful” users of marijuana from possessing firearms—U.S.C. §922(g)(3)—violated the Second Amendment of the Constitution.
In a separate federal court case, Department of Justice (DOJ) lawyers made similar arguments last month that the ongoing firearm restriction for cannabis users is “analogous to laws disarming the intoxicated” and other historical laws “disarming many disparate groups that the government believed presented a danger with firearms.”
That brief was the latest in a case filed by a Pennsylvania prosecutor suing the federal government over its ban on gun ownership by cannabis users. It came two weeks after lawyers for the official, Warren County District Attorney Robert Greene, asked the U.S. District Court for the Western District of Pennsylvania to allow the matter to proceed to trial.
Lawyers in a yet another federal appeals court case also faced off in October over when the government may lawfully disarm someone for using marijuana, with DOJ arguing in that dispute that a person’s recent use of the drug is indeed sufficient to establish that they’re in violation of the law and should not legally be able to possess a gun.
Judges on the U.S. Court of Appeals for the Fifth Circuit, however, pushed back on the government’s position, noting at oral argument that a recently published opinion within the same judicial circuit held that while “some limits on a presently intoxicated person’s right to carry a weapon” may be constitutional, “disarming a sober person based on past substance usage” is not.
That case, U.S. v. Daniels, was set to be considered by the U.S. Supreme Court earlier this year but was among a number of firearms-related cases remanded back to lower courts following a separate Supreme Court decision about firearms and domestic violence.
A Fifth Circuit panel previously ruled in favor of the individual in the case, who faced a conviction after admitting to having used cannabis while in possession of a gun. The court said the federal statute known as Section 922(g)(3), which prevents someone who is an “unlawful user” of an illegal drug from buying or possessing firearms, was unconstitutional.
In general, federal prosecutions of individuals who lie about their eligibility to own guns are rare. Sen. Lindsey Graham (R-S.C.) said earlier this year, for example, that “an average American” wouldn’t be charged under the law used to convict Hunter Biden.
In fiscal year 2019, according to the nonprofit National Criminal Justice Association (NCJA), federal prosecutors received 478 referrals for lying on Form 4473, which is filled out as part of a firearms transaction. They filed only 298 cases.
A Washington Post column in 2018 titled “Lying to buy a gun? Don’t worry about the feds,” noted that during the previous fiscal year, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) investigated 12,700 cases in which people were denied guns as the result of being in a restricted category.
Just 12 cases—0.09 percent of those investigated by ATF—resulted in prosecutions.
More recently, some federal prosecutors have said they’re now “aggressively pursuing” people who lie on federal firearm paperwork.
“Keeping guns out of the hands of those who shouldn’t have them is of paramount concern,” U.S. Attorney Robert J. Troester, of the Western District of Oklahoma, said in a statement last year.
In a number of the ongoing court cases, DOJ has argued that the prohibition on gun ownership by marijuana users is also supported by a recent U.S. Supreme Court decision, U.S. v. Rahimi, that upheld the government’s ability to limit the Second Amendment rights of people with domestic violence restraining orders.
DOJ has made similar arguments in favor of the firearms ban in a case in a case in the U.S. Court of Appeals for the Eleventh Circuit. In that matter, a group of Florida medical cannabis patients contends that their Second Amendment rights are being violated because they cannot lawfully buy firearms so long as they are using cannabis as medicine, despite acting in compliance with state law.
The Biden administration, meanwhile, argues that medical marijuana patients who possess firearms “endanger public safety,” “pose a greater risk of suicide” and are more likely to commit crimes “to fund their drug habit.”
The Justice Department has claimed in multiple federal cases over the past several years that the statute banning cannabis consumers from owning or possessing guns is constitutional because it’s consistent with the nation’s history of disarming “dangerous” individuals.
Last year, for example, the Justice Department told the U.S. Court of Appeals for the Third Circuit that historical precedent “comfortably” supports the restriction. Cannabis consumers with guns pose a unique danger to society, the Biden administration claimed, in part because they’re “unlikely” to store their weapon properly.
Meanwhile, some states have passed their own laws either further restricting or attempting to preserve gun rights as they relate to marijuana. Recently, for example, a Pennsylvania lawmaker introduced a bill meant to remove state barriers to medical marijuana patients carrying firearms.
Colorado activists also attempted to qualify an initiative for November’s ballot that would have protected the Second Amendment rights of marijuana consumers in that state, but the campaign’s signature-gathering drive ultimately fell short.
President Joe Biden’s pardon of his son, Hunter, for drug-related and other crimes is drawing cries from criminal justice and marijuana policy reformers, who call the action hypocritical and say the president should do more to grant clemency to cannabis prisoners before his term expires next month. “In pardoning Hunter Biden, the president noted that Read More
