Biden's move shows the federal government's view on the drug is evolving, but it still leaves the issue mostly in the hands of the individual states
A pardon is not the same as an expungement, which clears background reports of criminal charges. Even if your marijuana charges were pardoned, background checking services can still find out about them from online searches and news reports.
The Effect of Biden’s Federal Pardon on Marijuana Drug Charges for a Background Check
In 2021 alone, more than 170,800 people out of the 500,000 arrested for drug possession in the US were arrested on marijuana-related charges. Most likely, a small percentage of these are valid charges related to trafficking from other international suppliers. However, most of these charges are in an often-contested gray area because while marijuana is illegal according to federal law, the state where the charges actually occur allows for either medical or recreational cannabis use.
This leaves many individuals in a tough spot. Even if someone is walking on their own property in the state of Maine, where recreational marijuana is legal, a federal agent can arrest and charge anyone because the drug is still considered a controlled substance nationally. So how does a federal marijuana charge affect your background check under these circumstances, and how has Joe Biden’s federal pardon changed this?
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Federal vs. State Marijuana Laws
In the last few years, the federal government has taken a more lenient stance on marijuana. Most Americans support legalizing the drug, and some presidential candidates are coming out in favor of making it legal at the federal level.
Currently, 18 states plus the District of Columbia (Washington D.C.) have recreational marijuana laws making it legal to consume, grow, or own. 37 states have legalized medical marijuana.
However, despite all of this, marijuana is still considered illegal by the federal government.
The result is a government showdown that leaves citizens in the middle. The states that have made marijuana legal in some form have experienced less crime and higher tax revenues. That is enticing many other states to rapidly adopt laws of their own, but the future is still up in the air.
Do Marijuana Charges Show Up on a Background Check?
Charges do not always show up because they can be reduced or eliminated when someone accepts a plea deal from the state or federal government. However, a conviction for anything will show up on your background check if it has occurred in the previous 7 years. Some checks go back further, but that is the industry standard.
The good news is it probably doesn’t matter. In fact, marijuana charges are pretty low on the radar for many employers. A criminal record is one thing. If you have committed assault or a sexual offense, that is hard to explain during an interview for a job or apartment. A marijuana conviction can often be shrugged off because the drug has such widespread support for legalization.
Did the President’s Pardon Include Me?
This relates to only “simple marijuana possession,” so your offense would have to be the same level to be pardoned.
At the time of the announcement, the pardon affected more than 6,500 individuals with prior convictions. There were zero people incarcerated on that federal charge – so no one was getting out of jail, contrary to what may have been reported.
You are not eligible for the pardon if you are not a U.S. Citizen at the time of your arrest. So even if you have been naturalized since your day in court, you still do not qualify.
Biden has also instructed the Secretary of Health and Human Services as well as the Attorney General to review how marijuana is classified. This signals that the substance may be lowered in classification or completely legalized federally.
How Does this Affect My Background Check?
So, what exactly does this mean for your background checks? A pardon is not the same as an expungement, which is a process that removes the record of your charge from your criminal record. A pardon means only those with certain levels of access can see your conviction on an official background check.
However, most consumer-related background check services will still find it from online searches and news reports. An expungement is better because it completely removes the charge from your record. That way, if someone shows you a background check with that conviction, you can actually take legal action against them for spreading false or unverified information.
Can I Get My Record Expunged or Erased?
States vary in how they handle expungement or restoration of civil rights. Luckily, this pardon refers to a federal crime. Normally, Congress doesn’t allow the conviction of a federal crime to be expunged or sealed. However, under 18 U.S.C. 3607(c), minor offenses of the Controlled Substances Act can be expunged.
This is good news for anyone wanting a “simple marijuana possession” charge expunged from their records that is low enough to qualify. There may be some court battles going through the process of ironing out this procedure over the next few months to years, but there is a good probability your conviction will qualify for being expunged.
Does Having My Charge Expunged Appear on Background Checks?
It is not supposed to appear on those checks, but most likely will. With the advent of the internet, information tends not to go away – even from official records. You can easily contest these types of checks with evidence of your pardon, and may be able to take legal action accordingly for defamation because your circumstances have changed.
If you are one of the few 6,500 lucky enough to have received an official White House pardon of your marijuana conviction, you should do everything you can to leverage that document. When a drug conviction is removed from your record, it opens doors to getting new jobs and finding a better place to live. Considering there were 6.1 million arrests between 2010 and 2018 for marijuana possession, you are one of the very few being given a second chance.
Where to Find Help
We have a leading consumer legal team that can help smooth out many of the challenges and questions you may have about Biden’s pardon and how it affects your background check. If you are denied a job, loan, etc. based on something that was supposed to be expunged from your records, we can pursue legal action for you.
We have helped many consumers fix errors on their background check, especially in the cases of applying for work or a new apartment. Schedule a consultation with our team today, and let’s see if we can find a better way forward, so your conviction doesn’t trip up your future plans.
As for marijuana in general, expect further action like Biden’s from both sides of the aisle. Being able to smoke, consume, and grow marijuana is extremely popular with the general public, especially after states have seen so many financial and crime benefits. There is a high probability it will continue to be legalized state by state until the federal government changes its official tune.