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Since the President’s surprising pardon announcement last month, the case for cannabis resentencing is stronger than ever

Frances Trousdale • Nov 07, 2022

On October 6, President Biden made an unprecedented announcement about how his administration will address cannabis policy moving forward. His announcement had three parts: 1) pardoning citizens with federal marijuana possession convictions; 2) calling on governors to take similar action at the state level; and 3) calling on the Secretary of Health and Human Services and the Attorney General to review marijuana’s federal Schedule 1 status. The intent of these efforts are clear: The war on cannabis failed. It was wrong. And governments must act to begin to redress those wrongs.


The intent of the President’s action was to begin what will be a long process to provide retroactive relief for those criminalized for cannabis across the country. Governors interested in heeding the President’s call can issue similar executive pardons and use their authority to encourage legislation that provides automatic record clearance for individuals suffering the collateral consequences associated with having a cannabis record and sentence reviews for individuals still incarcerated for cannabis offenses. And state legislatures can take up said legislation and act on it swiftly.


The Virginia General Assembly had begun this process prior to the President’s announcement, but there is still work to do. In 2021, legislation was passed to provide automatic sealing for certain low-level marijuana records. Implementation of that is underway. But legislation to provide sentence reviews to Virginia prisoners serving time for cannabis-related convictions was not adopted in 2021 or 2022.


The War on Drugs marked an era of harsh cannabis criminalization, with the arrest and incarceration of millions of people for marijuana offenses, disproportionately people from marginalized communities. The position toward cannabis has dramatically shifted over the past decade, including in the Commonwealth. Yet, over a year after legalization was enacted here, it has failed to benefit many of the individuals most impacted by prohibition policies. Legalization does not operate retroactively, so while it may halt the harms of continuing prohibition, it does not repair the harms from decades of criminalization. 


To legalize with integrity, Virginia must offer sentence reviews to individuals still serving time for cannabis-related offenses. Cannabis resentencing is essential to the mission of the justice system. Incarceration places a cost upon both the state and its citizens--a significant human and financial burden. Justifying such costs requires showing the public safety benefit of taking the freedom of certain individuals. Who benefits from people staying in prison for something the government no longer considers criminal? Is the human and financial cost of keeping mothers and fathers incarcerated who pose no threat to society worth it?


From a moral perspective, continued incarceration for cannabis offenses is unjustifiable. Since cannabis was first criminalized, its enforcement was riddled with racist intent. Virginia has worked to reckon with the complicated history of its drug laws, reconsidering policies and ultimately repealing prohibition. But this progress falls short: while state leaders are contemplating the structure of a highly profitable new industry, at least several hundred Virginians are left behind bars for the very same behavior. 


And from a practical perspective, continued incarceration for cannabis offenses is unjustifiable. When a state chooses to punish a specific behavior, it signifies that the cost of incarcerating someone who engages in it is worth the benefit of separating them from society. If a state chooses not to punish a behavior, it signifies that the cost of incarcerating someone is not worth the benefit of separating them from society. Virginia’s choice to legalize recognizes that incarceration for cannabis-related offenses is a waste of taxpayer dollars--and yet, we continue to do it. 


Criminal laws and sentences reflect the time at present, and we need a justice system that mirrors this. Our treatment of cannabis has entered a new era, but Virginia’s criminal code remains stuck in an old one. The path forward is clear: to achieve the standard for morally and practically sound drug policy, Virginia must adopt cannabis resentencing--or risk all the progress we have made. 


Thanks to our friends at Recidiviz, we developed this policy impact memo to better understand the scope of resentencing in Virginia.

Last Prisoner Project Supports the Reintroduction of the Cannabis Administration and Opportunity Act (CAOA)

By Stephen Post • 02 May, 2024
This week, Senators Booker, Schumer, and Wyden reintroduced the Cannabis Administration and Opportunity Act (CAOA), comprehensive legislation that would legalize cannabis federally, expunge cannabis records, and release cannabis prisoners. Here are just a few highlights to help breakdown this bill: CAOA, if passed, could finally decriminalize cannabis on the federal level. Federal courts would have 1 year to expunge or seal arrests, convictions, and juvenile delinquency adjudications for most non-violent federal cannabis offenses. They'd also be required to educate recipients on the effects of their expungement(s). Some federal cannabis tax revenue would be directed to organizations that help people secure state-level cannabis expungements. The Bureau of Prisons would have 60 DAYS TO RELEASE (and vacate the convictions of) individuals serving tiem for most federal cannabis-only offenses. Individuals whose convictions don't fall under those guidelines, or whose sentences were enhanced because of prior cannabis convictions, would be able to petition the court for a reduced sentence. The feds wouldn't be able to deny people federal public assistance because of cannabis use, possession, or convictions. They also would not be able to consider cannabis a controlled substance for the purposes of immigration proceedings. Read more about the CAOA here and read recent coverage in Filter Mag and Marijuana Moment of our 420 Unity Day where we joined with advocates to talk to Sen. Schumer and other lawmakers about the CAOA and other efforts to enact cannabis justice

DEA Moves to Officially Reschedule Cannabis

By Sarah Gersten • 30 Apr, 2024
Rescheduling is not legalization, and the existing penalties for cannabis remain unchanged. In October of 2022, President Biden made a series of historic cannabis-related executive actions , including initiating a review by the Department of Health and Human Services (HHS) and the Department of Justice on how cannabis is scheduled under federal law. In August 2023, HHS recommended rescheduling cannabis from a Schedule I drug to a Schedule III drug and referred it to the Drug Enforcement Agency (DEA) for final approval. Today, the DEA announced its decision to approve the HHS recommendation to reschedule cannabis to Schedule III. The proposal now goes to the White House Office of Management and Budget (OMB), to review the rule. If approved by OMB, the proposed rescheduling would go to public comment before being finalized. This historic announcement is the culmination of years of advocacy by Last Prisoner Project (LPP) and other advocacy groups to push the federal government to better reflect the public’s view on cannabis. While the move is undoubtedly a step forward for the movement, it does not meet LPP’s goal to fully remove cannabis from the Controlled Substances Act and its associated criminal penalties. So then, what exactly does this schedule change mean for cannabis justice reform? While the action could result in some favorable tax and banking reform for the cannabis industry and more dedicated research for cannabis patients, there are no changes in how the criminal legal system punishes cannabis users. Rescheduling is a peripheral change that signals the reevaluation of cannabis, but not the release of cannabis prisoners or relief for those who continue to be burdened by the lasting consequences of the carceral system. In short, this announcement represents progress but not justice. Despite not achieving full legalization, we must use this historic moment to push the fight for cannabis justice forward by broadening the scope of Biden’s cannabis clemency action, working with Congress and certain administrative agencies to both provide retroactive relief and to reduce prospective cannabis criminal enforcement, and incentivizing states to provide broad retroactive relief, particularly in states that have adopted a fully legal cannabis market. Learn more about ways cannabis justice advocates can leverage this change to advance reforms in our recent memo . LPP is committed to continuing the fight for cannabis justice until everyone is fully free from the harms of the War on Drugs. This means advocating for cannabis to be fully descheduled. To ensure we keep the pressure on descheduling, retroactive relief, and full legalization, Last Prisoner Project helped organize the largest bipartisan group of cannabis advocates in Washington D.C. on April 18th, 2024 for our 420 Unity Day of Action to urge Congress and the President to take further action. Last Prisoner Project believes that complete descheduling is a necessary step towards correcting past injustices and creating a fair and equitable criminal legal system. We will continue to leverage the momentum achieved from our advocacy to ensure that individuals burdened with past cannabis convictions have their records expunged and all cannabis prisoners are released, regardless of the federal scheduling decision.

President Biden Grants Clemency to 16 Non-Violent Drug Offenders, But No Cannabis Offenses Included

By Stephen Post • 27 Apr, 2024
President Joe Biden made a statement Wednesday announcing a decision to pardon 11 people convicted of non-violent drug charges and commuted the sentences of five others. "America is a nation founded on the promise of second chances," he said . "We also recommit to building a criminal justice system that lives up to those ideals and ensures that everyone receives equal justice under law." Despite this positive use of his clemency powers, President Biden again failed to include any people still in prison at the federal level for cannabis offenses which is estimated to be at least 3,000 individuals. Even though he has provided record relief to almost 13,000 people with his expanded cannabis possession pardons, the President has failed to release a single person in prison for cannabis. Last Prisoner Project Executive Director, Sarah Gersten said, "While we are encouraged to see the President use his clemency power to commute the sentences of those incarcerated for drug offenses, we are hopeful that the administration will fulfill their promises both to use the clemency power more robustly as well as to commute the sentences of those still incarcerated for cannabis." "The Administration has made it clear that cannabis reform is a priority and one that will energize their electorate. To truly make an impact that will sway voters come November the president needs to take action to release the estimated 3,000 individuals still incarcerated for cannabis federally." We hope that President Biden recognizes that releasing people with cannabis offenses doesn't require legalization. They demand executive action. If he is looking for the next batch of candidates for clemency, we have already sent him a list of deserving individuals whose petitions are sitting with the Office of the Pardon Attorney. He simply needs to act on them. We recently rallied advocates at the White House on our 420 Unity Day of Action to demand their freedom and encourage the public to help tell Congress and the President to take further action.
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