Fifteen months into his presidency, Joe Biden has granted his first clemencies. Last week he pardoned three people and commuted the sentences of 75 others. The beneficiaries of these pardons and commutations were non-violent offenders who already had served most of their sentences. In fact, many of them were already out of jail and in home confinement.
While this exercise of clemency was an important first step, it was neither bold nor courageous. Biden seemed to be testing the waters rather than taking the plunge into an ambitious, reform-oriented use of the clemency power.
It is a disappointment that he did not seek to do more.
During his presidential campaign, Biden talked about clemency in expansive terms, linking it to a broad criminal justice reform and racial equity agenda. According to a report in The New York Times one year ago, the White House signaled to criminal justice activist groups that it intended to use clemency grants “to address systemic issues in the criminal justice system.”
At the same time, the Biden administration also promised to restore order to the clemency process, which had been regularly short-circuited or circumvented by former President Donald Trump.
But if the president is to fulfill the vision of the clemency process he outlined in his campaign, he will need to do more than tinkering with the process and addressing the unduly harsh sentences given to non-violent drug offenders. He will have to the use his power to tackle inequities and injustices and to extend mercy to the thousands of violent offenders sentenced to prison under tough on crime policies that Biden himself advocated early in his Senate career.
The president has a chance to lead the way by acknowledging that harsh sentences and mass incarceration have not made America safer and that even many violent offenders deserve a second chance
Given rising crime rates and concerns about violent crime, this won’t be easy and it won’t be cost-free.
Being merciful never is.
No matter how low the crime rate, presidents do not become more popular for by showing mercy to prisoners. They are much more likely to face criticism than to get a political benefit when they issue pardons or commutations.
Examples of such blowback are legion. Think about President Nixon’s grant of clemency to Lt. William Calley, the only person convicted in connection with the 1968 massacre of villagers by U.S. troops in My Lai, South Vietnam, or President Gerald Ford’s pardon of Nixon, or Bill Clinton’s pardon of Marc Rich, financier and prominent donor to his campaigns.
This fact of political life explains why presidents have often waited to issue most pardons and commutations until the last year of their terms. For example, just under half of the clemencies granted by President George H. W. Bush occurred in his last year in office. The comparable numbers: for President Clinton 56 percent; for President Obama 61 percent; and for President Trump 84 percent.
Such data offer hope that Biden’s first use of clemency will not be his last.
The Washington Post notes that White House press secretary Jen Psaki suggested that the president’s action this week was “only a first step, to be followed by other pardons and commutations… (The president) ‘feels that second chances are important … So it doesn’t stop here. It will be ongoing, and there may be more in the future.’”
It is too early to tell how often Biden will use his clemency power or whether he will return it to what those who wrote the Constitution hoped it would be, namely a potent tool of mercy and for the expression of unpopular but compassionate sentiments.
John Marshall, the first Chief Justice of the Supreme Court, called clemency “an act of grace, proceeding from the power entrusted with the execution of the laws.”
Since then courts have regularly recognized the wide latitude that presidents and state governors have in deciding who to pardon or commute — and why.
In 1866, the Supreme Court said that the clemency power is “is unlimited, with the exception [in cases of impeachment]. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.”
Five years later, the Court reiterated this view. It held that the pardon power was exclusively “[en]trusted” to the president “without limit” and that Congress could no more “change the effect of such a pardon … than the executive can change a law.”
Lest one think that this expansiveness is a relic of a bygone era, in 1981 the Court reaffirmed this view. It said that the president’s clemency power was not even subject to the requirements of due process of law. “The executive’s clemency authority would,” the Court said, “cease to be a matter of grace committed to the executive authority if it were constrained by … procedural requirements.”
Biden’s first clemency hardly fits with that breathtakingly broad view. It was limited almost exclusively to non-violent drug offenders, and the president offered conventional justifications for his pardons and commutations.
“Today,” Biden explained, “I am pardoning three people who have demonstrated their commitment to rehabilitation and are striving every day to give back and contribute to their communities. I am also commuting the sentences of 75 people who are serving long sentences for non-violent drug offenses, many of whom have been serving on home confinement during the COVID-pandemic — and many of whom would have received a lower sentence if they were charged with the same offense today, thanks to the bipartisan First Step Act.”
Ironically this exclusive focus on rewarding rehabilitation and correcting unduly harsh sentences is reminiscent of the kinds of justifications offered by President Trump for his often unconventional uses of the clemency power.
President Biden still has time to expand his use of clemency and to take the bold and courageous step of recognizing that mercy can play an important role in a reformed and improved criminal justice system. He should look in every corner of the federal prison system, including its death row, and try to tame its undue harshness and cruelty. The question is: Does he have the will and the courage to do so?
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College and the author of “Lethal Injection and the False Promise of Humane Execution.” Follow him on Twitter @ljstprof