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True Justice Will Require Bolder Clemency Action from President Biden

Sarah Gersten and Lisa Monet Wayne • June 1, 2023

As Second Chance Month came to a close, President Biden announced he was commuting the sentences of thirty-one people on home confinement after being convicted of various federal drug offenses. This announcement coincided with the administration’s release of an Alternatives, Rehabilitation, and Reentry Strategic Plan aimed at reducing recidivism by helping the formerly incarcerated access health care, housing, education, employment, and more. 


The administration has indicated that these clemency grants, especially when considered in conjunction with the
6,500 pardons issued to people with federal marijuana offenses last October, are a testament to the President’s commitment to criminal justice reform. While this is certainly progress, the Biden Administration could and should be much bolder in leveraging the President’s clemency power to shore up his commitment to advancing substantive criminal justice reforms. 


The framers conceived of the clemency power as a mechanism for addressing injustices and systemic shortcomings in America’s criminal justice system, and were hopeful future presidents would use it to intervene when the country’s legal system failed to deliver a morally tenable result. And for centuries, that’s exactly what happened. For most of modern American history, presidents from Jackson to Carter were unstinting in their use of their clemency power. They understood their actions not only as a way to remedy overly harsh sentences, but also to help restore public faith in the justice system.
These clemency grants were issued at a steady cadence and often bestowed upon individuals whose punishments were considered by the American public to be disproportionate to the gravity of the crime. 


Unfortunately, the use of clemency
has been severely diminished over the past few decades. This dramatic change came as a rash of “tough-on-crime” politicians and policies ascended into higher office in the 1980s, and resulted in a precipitous drop in the number of pardons and commutations presidents were willing to issue. 


While the President’s recent issuance of pardons to those with marijuana possession records is a welcome move,
it’s important to note that it didn’t result in a single individual being released from prison. It also doesn’t indicate a return to a more traditional and expansive use of the presidential clemency power. As President Biden considers using this tool again before the next election, he should recognize his clemency power has the potential to effectuate much more meaningful reform than it has during the first half of his term. For example, President Biden could use his clemency power to release the nearly 3,000 people serving time in federal prison for marijuana offenses (despite the fact that the majority of Americans live in a jurisdiction where they can legally obtain state-regulated cannabis products). 


Bold action like this would of course bring welcome relief to this deserving class of people. But the benefits of a clemency grant like this would extend beyond the immediate release of incarcerated individuals. As the Framers often made clear, clemency can also serve as a powerful symbol of the values that we hold as a society. A “categorical cannabis commutation” would serve as an acknowledgment of the systemic injustices that have plagued our nation, and help increase Americans’ waning confidence in a criminal justice system that puts certain (disproportionately Black, brown, and low-income) people in jail for cannabis at the very same time it allows others (disproportionately white, wealthy and well-connected) to legally profit from its sale. 


Releasing those incarcerated for federal marijuana offenses would be a testament to President Biden’s commitment to a fair and equitable society, and would help to address the racial disparities that have characterized our criminal justice system for far too long. By using his clemency power in this way, President Biden will demonstrate a commitment to justice and bring us closer to a society that lives up to our shared values. 


BIOGRAPHIES:


Sarah Gersten
is the Executive Director and General Counsel for the Last Prisoner Project. Along with leading the organization's direct legal service programs, Sarah also works to ensure that LPP centers a model of innovative solutions for systems change that prioritizes the voices and perspectives of impacted individuals. Throughout her career Sarah has worked at the intersection of cannabis legalization and criminal justice reform. After working as an attorney at a congressional agency where she focused on legislative policy, Sarah co-founded a cannabis-centric law firm where she led the firm's pro bono initiative, taking on expungement and record-sealing cases. Sarah went on to co-found and serve as CEO for a legal tech startup that offers affordable legal solutions for small cannabis business owners, as well as free expungement services. Sarah is a member of the National Cannabis Bar Association, the NORML Legal Committee, and the National Lawyers Guild. She received her BA from Tulane University and her JD from Harvard Law School.


Lisa Monet Wayne
has been an attorney in private practice in both state and federal courts around the country. She represents individuals and corporations in both the investigation phase and criminally accused capacity. Previously, Wayne was a Colorado State Public Defender for 13 years where she served as office head, training director, and senior trial attorney. She lectures nationally with NACDL, National Criminal Defense College, National Institute of Trial Advocates, American Bar Association, Federal Defender Training Services, State Bar Associations, numerous Federal and State Public Defender Organizations, and many other organizations. Wayne has served as an adjunct law professor at the University of Colorado where she taught trial advocacy for 22 years, she serves on faculty at the Trial Practice Institute at Harvard Law School, The National Criminal Defense College, and Cardoza Law School. Ms. Wayne is an advocate in all venues of the media addressing important issues confronting the criminally accused. She is a legal analyst for numerous media outlets including, ABC, CBS, CNN, Al Jazeera, and World Radio regarding high-profile cases and legal issues around the country.  She is frequently quoted in print media such as the Wall Street Journal, The Guardian, New York Times, Washington Post, Detroit Free Press, and the AP wire. Ms. Wayne testified before the United States Sentencing Commission in 2012 against the implementation of the Federal Sentencing Guidelines as mandatory.  In 2005, Wayne was honored with the Robert J. Heeney Award, NACDL’s most prestigious recognition. Wayne is the Past President of NACDL, Past President of the National Foundation of Criminal Justice, and serves on numerous committees around criminal justice issues. Wayne is a member of the Colorado Supreme Court Standing Committee on Ethics. She is also a member of The Colorado Sentencing Reform Task Force. Wayne is a law graduate of Pepperdine University Law School and an undergraduate degree in Psychology from the University of Colorado. 


By Stephanie Shepard February 20, 2025
Roots of Resilience: African American Contributions to the Cannabis Movement Cannabis has deep historical roots, stretching back thousands of years across various cultures, including Africa, where it was used for medicinal and spiritual purposes. In pre-20th century America, hemp was cultivated primarily for fiber, but there is evidence of its use within some African American communities as well. These early connections laid a foundation for a complex relationship between African Americans and cannabis, one shaped by cultural significance, criminalization, activism, and entrepreneurship. This journey reveals a narrative of resilience and influence, showcasing the integral role African Americans have played in the evolution of cannabis culture and policy in the United States. The 1930s marked a pivotal shift with the enactment of the “Marihuana Tax Act” of 1937, which effectively criminalized cannabis. This legislation was rooted in racial undertones, strategically associating cannabis use with marginalized communities, particularly African Americans and Mexican immigrants. This racialized narrative was fueled by propaganda that painted cannabis users as violent and dangerous, reinforcing stereotypes that justified harsh legal consequences. The demonization of cannabis laid the groundwork for decades of systemic discrimination and criminalization that would disproportionately impact African American communities. Despite these challenges, African American cultural icons began to reshape the narrative around cannabis during the early 20th century. Louis Armstrong, an iconic jazz musician, openly discussed his cannabis use in interviews. His candor helped normalize its use within African American culture, particularly within the jazz scene, where cannabis became associated with creativity and artistic expression. Armstrong's influence extended beyond his music; he challenged societal norms by embracing cannabis as a tool for relaxation and inspiration, subtly defying the negative stereotypes perpetuated by mainstream society. His legacy continues to inspire artists who view cannabis as an integral part of creative expression and cultural identity. During the 1960s, amid the Civil Rights Movement, cannabis use emerged as a form of counterculture expression among Black Americans in urban areas. The plant became a symbol of resistance and freedom, aligning with the broader struggle against racial oppression. Yet, this association with rebellion also made cannabis a target of political agendas. In the 1970s, the Nixon Administration launched the “War on Drugs,” a policy initiative that disproportionately targeted Black communities. The criminalization of cannabis escalated, leading to skyrocketing arrest rates and significant incarceration disparities. Nixon's advisor, John Ehrlichman, later admitted that the policy aimed to disrupt Black communities and antiwar activists, revealing the racially motivated underpinnings of the drug war. The impact of the War on Drugs intensified during the 1980s under the Reagan Administration, which implemented even harsher drug laws, including mandatory minimum sentences for cannabis offenses. This era further stigmatized cannabis, exacerbating mass incarceration rates among African Americans. The resulting social and economic consequences devastated countless Black families and communities. However, even amid this adversity, resilience emerged. As the criminal justice system disproportionately targeted Black Americans, leaders and activists within these communities began organizing and advocating for change. By the 1990s, discussions around drug reform started gaining momentum, and African American activists played crucial roles in these conversations. They highlighted the racial disparities in drug enforcement and advocated for decriminalization and legalization of cannabis. This period marked the beginning of a shift in public perception, as activists linked cannabis reform to broader social justice issues. This became especially common in rap and hip-hop where many Black artists are advocates still today. In the early 2000s, the push for medical cannabis legalization gained traction in several states. African American activists were instrumental in these movements, advocating for patient rights and access to cannabis as medicine. By the following decade, significant progress was made as more states legalized cannabis for recreational use. This new landscape allowed Black Americans to participate in the industry as advocates and entrepreneurs. Yet, systemic barriers persisted, preventing equitable access to business opportunities. Wanda James emerged as a trailblazer during this time, becoming the first African American woman to own a dispensary in Colorado. Her business, Simply Pure, symbolizes resistance against the racial discrimination historically tied to cannabis prohibition. Wanda’s advocacy extends beyond entrepreneurship—she works tirelessly to influence cannabis legislation and ensure communities affected by criminalization benefit from legalization. Her leadership challenges the status quo and paves the way for a more inclusive industry. Meanwhile, Calvin Johnson, a former NFL superstar, co-founded Primitiv cannabis to highlight the therapeutic benefits of cannabis as a safer alternative to opioids commonly used by athletes. His advocacy challenges the stigma surrounding cannabis use in professional sports and emphasizes the need for reparative justice in communities disproportionately affected by past drug policies. Now in the present, the 2020s represent a pivotal moment in the cannabis movement, as legalization continues to expand and discussions about equity and justice gain momentum. States have implemented measures to address the injustices faced by Black Americans during the War on Drugs, including expungement of records and support for minority-owned cannabis businesses. Donte West is at the forefront of this movement, leveraging his experiences with cannabis criminalization to advocate for equity and systemic change. Through his work with the Last Prisoner Project, Donte inspires others to participate in the cannabis industry and advocate for justice. We have seen a surge of African American entrepreneurs who are redefining the cannabis industry. Jesce Horton, the founder of Lowd and Grand National, is committed to creating opportunities for historically excluded communities while influencing cannabis legislation to promote equitable access. Roger “Ganja Guru” Sterling uses his platform to uplift communities of color and challenge societal narratives around cannabis, while Gibran Washington, CEO of Ethos Cannabis, advocates for inclusivity and justice within the legal cannabis market. Their leadership reflects a new chapter of empowerment and success, breaking down barriers and ensuring diverse voices shape the industry's future, though there is plenty of work still needed to balance the scales of cannabis ownership. Organizations like The Hood Incubator and Free My Weedman are also crucial in paving the way for a more inclusive cannabis space. By supporting Black and Brown entrepreneurs, advocating for equitable policies, and raising awareness about unjust incarcerations, these initiatives work to rectify historical injustices and promote social equity. Kristal Bush, founder of Free My Weedman, combines her entrepreneurial spirit with community advocacy, influencing cannabis policies and empowering marginalized communities. As we honor the contributions of Black individuals and organizations during Black History Month, it is essential to recognize the ongoing struggle of those disproportionately criminalized for daring to be involved with cannabis. From Louis Armstrong’s cultural influence to modern-day entrepreneurs and activists, African Americans have shaped the cannabis movement at every turn. Their resilience and leadership challenge systemic injustice, demand equity, and celebrate cultural identity, paving the way for a better industry for all. To continue supporting this legacy, we can engage in conversations about equity, support Black-owned cannabis businesses, and advocate for policies that promote justice. By acknowledging the past and celebrating the strides of the present, we can build a future that honors the roots of resilience within the cannabis movement.
By Adrian Rocha February 7, 2025
o weeks into President Trump’s second term, cannabis has not surfaced as a leading issue in the early days of his new administration. However, several appointments and two executive orders signed during the first week of his second term will factor into the new administration’s drug and criminal justice policy approach. On his first day in office, President Trump signed an Executive Order (EO) rescinding a slew of EOs signed by former President Biden, including one effectively ending the use of private prisons to house federal prisoners . At the time President Biden signed the EO directing the Justice Department not to renew contracts with private prison firms, it was estimated that around 14,000 individuals incarcerated at the federal level were being held at private prisons. Additionally, President Trump signed another EO encouraging the Attorney General to “pursue the death penalty for all crimes of a severity demanding its use.” During his first term, President Trump voiced his support for seeking the death penalty for drug traffickers. This position was later formalized in a memo by then-Attorney General Jeff Sessions that encouraged federal prosecutors to seek the death penalty in cases involving large-scale drug traffickers. There were concerns at the time that the memo could be used to seek the death penalty for individuals involved in large-scale, state-legal cannabis operations; however, these fears never came to pass. The uncertainty around leadership further complicates the implementation and impact of these two executive orders. President Trump’s Attorney General nominee, Pam Bondi, who will oversee the Justice Department, was confirmed earlier this week. Additionally, the recent resignation of the Director of the Bureau of Prisons (BOP) has left the agency without a leader. During her confirmation hearing, Bonid reiterated her support for the continued implementation of the First Step Act, which could lead to additional releases from the BOP. In a letter to the newly minted Department of Government Efficiency, Senator Elizabeth Warren (D-MA) also encouraged the federal government to look at scaling back the enforcement of federal cannabis laws, broader legalization, and the BOP to pursue compassionate release at greater scale to reduce the size and cost of the federal prison population. In her letter, Senator Warren cites a potential cost savings of $881 million if the BOP were to more zealous seek the release of individuals over age 65, are classified as presenting a minimum or low risk of recidivism, and are found not to be a danger to the safety of any person or the community. LPP has successfully advocated for the release of constituents incarcerated for cannabis via commutations and compassionate release motions, including nine in the first Trump administration. If the goal of a second Trump administration is to divert resources away from government largesse, ending unnecessary cannabis enforcement and granting clemency to those still incarcerated for cannabis is a great way to start.
By Adrian Rocha February 4, 2025
At the Last Prisoner Project (LPP), we know that those burdened by past cannabis convictions deserve true justice by getting their criminal records fully expunged and allowing individuals to move forward without the lifelong barriers. In Maryland, where Governor Wes Moore made history last year by issuing the nation’s most sweeping cannabis pardon order, we are now calling on lawmakers to take the next step: passing SB 432, the Expungement Reform Act of 2025 . A criminal record—whether for a conviction or even just an arrest—can create lasting obstacles to employment, housing, education, and other opportunities. The impact is not just personal; according to research from the Center for Economic and Policy Research, the U.S. economy loses between $78 and $87 billion annually due to employment barriers faced by people with criminal records. These collateral consequences compound the injustices of the War on Drugs and disproportionately affect communities already marginalized by systemic inequities. SB 432 seeks to simplify the expungement process, removing unnecessary bureaucratic hurdles and making it easier for individuals to clear their records. The bill will help thousands of Marylanders—many of whom have already served their sentences—access new opportunities and contribute fully to their communities. In 2024, Governor Wes Moore demonstrated bold leadership by granting pardons to over 175,000 Marylanders with low-level cannabis convictions. This was a critical step toward undoing decades of harm caused by cannabis prohibition. However, the reality is that while a pardon provides some relief, it does not automatically erase a record. Individuals must still navigate complex legal procedures to have their records expunged—a process that can be costly, time-consuming, and confusing. LPP urges the Maryland General Assembly to amend SB 432 to ensure that individuals granted full and unconditional pardons can have their records expunged automatically. Without this critical update, many of those pardoned under Governor Moore’s order will still face barriers to jobs, housing, and other essential services, despite having been officially forgiven by the state. Adrian Rocha, LPP's Policy Director, was recently appointed to the governor's roundtable on expungement, where we hope to provide further expertise on how to fully effectuate cannabis justice through retroactive relief. Research shows that record clearance not only benefits individuals but also strengthens communities. A recent study found that five years after receiving expungement, individuals were less likely to engage in criminal conduct than members of the general public. By increasing access to jobs, housing, and educational opportunities, expungement promotes community reintegration and stability—key factors in public safety. Moreover, Maryland has the opportunity to join 12 other states that have implemented state-initiated expungement for certain offenses, recognizing that individuals should not be required to navigate complex legal systems to obtain relief they are already entitled to. Maryland has already taken significant steps toward cannabis justice, but the job is not done. Passing SB 432 and ensuring automatic expungement for those granted clemency will solidify the state’s commitment to meaningful criminal justice reform. LPP urges the General Assembly to pass SB 432 and amend it to ensure that those who have received full pardons under Governor Moore’s order do not have to wait or fight for the relief they were promised. This is about more than policy—it’s about restoring dignity, removing barriers, and allowing Marylanders to build better futures. The time for action is now. Maryland’s commitment to justice through record relief must extend beyond pardons. Let’s finish what we started. Read our full testimony below:
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