Why not military pot pardons?

President Biden forgot a group of citizens when he recently pardoned thousands of federal marijuana possession convictions: those convicted while serving in the U.S. military. While the presidential proclamation deals with federal, not state, convictions, it only expressly pardons convictions of civilian federal criminal law, and not those convicted under military criminal law.

The proclamation specifically cites the federal Controlled Substances Act and the District of Columbia statutory criminal provisions, while neglecting to mention the military’s penal code, found in Title 10 of the U.S. Code, under which military members are court-martialed and convicted of similar drug offenses.

This oversight should be remedied immediately by extending the recent presidential pardon to expressly include military Title 10 convictions of simple pot possession.

Why should a veteran — who has been court-martialed and discharged from the military due to marijuana possession — not benefit from the same pardon extended to civilians? They face similarly serious life hurdles thanks to their criminal conviction, in areas such as employment to housing, plus diminished or eliminated veterans’ benefits. This last point is striking, given that there is significant evidence of greater mental health challenges amongst military members than in the general civilian population (with the rate of depression five times higher and PTSD 15 times that of civilians), with such challenges remaining amongst the veteran population.

Furthermore, particularly given that the president cited the racial disparities in drug convictions as influencing his pardon decision, it must be acknowledged the military justice system has long been rife with its own racial disparities. For example, Black soldiers are court-martialed at twice the rate of their white peers (yet Black soldiers do no commit crimes at twice the rate — they instead face greater scrutiny and consequences when they do). Hence if the military justice system is as equally broken on the racial front (or perhaps more so) than the civilian federal criminal justice system, it is makes little sense to exclude former military members from these pardons.

At the most fundamental level, the same flawed criminalized approach to marijuana that has long infected both federal and state approaches to drug control is partially responsible for equivalent convictions in the military; the relevant military criminal laws and regulations warrant serious review and reform.

As more and more states legalize the use and possession of marijuana, and as the federal government reviews its own controlled substances policies, the need for reasonable laws dealing with marijuana use and possession by those in the military grows more critical. Indeed, the Pentagon is already facing grave recruiting challenges on top of persistent mental health crises amongst those currently serving: The time is now for reflection and resultant revision of the military’s criminalized approach to off-duty marijuana consumption. 

Meanwhile, the president’s recent civilian pardon action should be extended to those convicted in the military. The pardon only extends to simple pot possession; no one is arguing that an airman who showed up high on marijuana to a flight-line fixing fighter aircraft should be pardoned for his subsequent conviction for such dangerous impairment. Similar to how alcohol is treated within the military, it is the impairment on duty that carries significant harm, not the responsible private use during off-duty hours by those of legal age. 

Yet there are former soldiers, airmen and other service members who, though they wrongly broke military law by possessing small amounts of pot, have been punished enough — they lost their military careers on top of enduring the many collateral consequences that flow from federal court-martial conviction. Given their volunteer service to our nation, they should not be punished even more by not being able to take advantage of a federal pardon currently only available to those convicted in civilian courts.

President Biden’s recent proclamation should therefore include those convicted by military courts too. Because, in his words, “[t]oo many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs.”

Rachel E. VanLandingham, is professor of law at Southwestern Law School, Los Angeles, a retired U.S. Air Force Lt. Col. and current president of the National Institute of Military Justice.