marijuana montana
A marijuana plant in the rotunda of the Montana Capitol during a February 2009 "cannabis at the Capitol" lobbying day. Credit: Chad Harder / MTFP

Yesterday, President Joe Biden made a series of sweeping announcements regarding his plans to reform marijuana policy nationwide. While those reforms initially focus solely on Americans facing federal drug charges, the plan could eventually make an impact on people facing state charges as well.

In his most direct action, Biden pardoned all federal prisoners convicted of simple marijuana possession. The pardon does not apply to Americans charged with other federal marijuana-related offenses, like illegal cultivation or distribution, or to noncitizens. News reports estimate that the president pardoned roughly 6,500 people.

 “The governor will continue to evaluate clemencies submitted through the Board of Pardons and Parole on a case-by-case basis, in accordance with statute.”

Gov. Gianforte spokesperson Brooke Stroyke

Biden additionally called on governors to similarly pardon simple marijuana possession offenses in their respective states. 

In response to queries from Montana Free Press, Gov. Greg Gianforte’s office was noncommittal about the president’s request.

“The governor will continue to evaluate clemencies submitted through the Board of Pardons and Parole on a case-by-case basis, in accordance with [state] statute,” spokesperson Brooke Stroyke told Montana Free Press Friday.

While a pardon results in the erasure of a criminal offense from an individual’s record, clemency occurs when the state grants a reduced sentence or temporary reprieve of a sentence.

“Governor Gianforte has long supported treatment in lieu of incarceration for non-violent drug offenders, making a historic investment in treatment and prevention programs for communities in his first year in office,” Stroyke added.

The statement refers to language in House Bill 701, the state’s cannabis legalization framework bill. HB701 authorizes courts to either resentence or expunge marijuana offenses now considered legal or lesser offenses, but does not enact an automatic expungement process.

As MTFP reported in April, the expungement policy has faced criticism as cumbersome and unclear. The Montana Supreme Court subsequently released a series of guidelines designed to help clarify the process.

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The Montana Bureau of Crime Control did not immediately respond to requests for comment regarding the number of Montanans charged with simple possession who would thus be eligible for pardons. But data available on the agency’s website shows that law enforcement made roughly 2,000 marijuana seizures annually between 2012 and 2020. Only 216 seizures were made in 2021, the first year of legal marijuana in the state.

According to Justin Strekal, a veteran advocate for cannabis reform on Capitol Hill and the founder of the national BOWL PAC, the vast majority of charges occur at the state or local level.

“It’s important to remember that overwhelmingly marijuana charges and convictions have been carried through not under federal law, but under state or local law,” Strekal told MTFP. “That’s why it’s critical for governors and localities to follow the example set by the president and move to pardon or expunge these criminal convictions.” 

DE-SCHEDULING VS. RE-SCHEDULING CANNABIS 

Biden also announced that Attorney General Merrick Garland and Health and Human Services Secretary Xavier Becerra will evaluate and reconsider cannabis’ current status as a Schedule 1 Controlled Substance.

“We classify marijuana at the same level as heroin — and more serious than fentanyl. It makes no sense,” Biden said.

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There’s a huge difference between de-scheduling cannabis — i.e., removing it completely from the federal list of controlled substances — and downgrading it to another class.

“Under a re-schedule, [states with legal marijuana] would still be out of compliance with federal law. Currently we do not see federal law enforcement officials and prosecutors taking action against adult-use states, but it’s unclear whether or not U.S. attorneys or law enforcement would take action against adult-use programs that are not in compliance with a potential re-scheduled classification,” BOWL PAC’s Strekal said.

As Biden noted, even in states with legal cannabis, like Montana, the drug’s Schedule 1 status can affect residents’ employment, housing, and educational opportunities. As MTFP has reported, marijuana’s status also prohibits the state’s residents from simultaneously owning or possessing both firearms and cannabis.

“Now is the time for Americans of all stripes to raise their voices loudly and clearly to say that it is appropriate to remove all criminal penalties for mere possession by adults, which can only be achieved by de-scheduling marijuana through the Controlled Substances Act,” Strekal said.

This story was updated Oct. 7, 2022, to clarify the governor’s office’s response.

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Max Savage Levenson

Max Savage Levenson is a Missoula-based reporter on the cannabis beat. He is the founder of Montana Cannabis Weekly, a newsletter covering the state industry. His writing on cannabis and pop culture has appeared in outlets including Pitchfork, NPR's All Songs Considered, Leafly, the San Francisco Chronicle, and Reason.