"When Will Joe Biden Start Using His Clemency Powers?"

The question in the title of this post is the headline of this lengthy New York magazine article by Zak Cheney-Rice.  The obvious answer, of course, is "not soon enough," given that Prez Biden has gone his first six month, amid a global pandemic after campaigning as a reformer, without a single act of clemency.  But the piece strikes a slightly more hopeful tone, and here excerpts: 

According to the New York Times, the Biden administration has signaled, as recently as this summer and in multiple conversations with advocates, that he would use clemency both broadly and soon, with an emphasis on advancing his racial justice agenda.  This is significant ... because over the last several decades, presidents have been using their clemency powers less often, waiting until later in their presidencies to do so, and leaving people in squalid and dangerous conditions for longer periods of time because of it....

In the waning days of Donald Trump’s presidency, his administration issued a memo saying the thousands of people who’d been released from federal prison to home confinement during the “pandemic emergency period” would be locked up again as soon as the order was lifted, if their sentences weren’t up by then.  According to the Times, this is still in effect, and the Biden administration has been weirdly cagey about whether it would reverse Trump’s order and let them stay home.  These 4,000 prisoners are pre-selected and already free, so they’re easy candidates for commutations. The White House reviews the emergency declaration every three months.  None of these reviews has yielded answers so far, and the next one is scheduled for July.

This situation is shaping up to be a test of Biden’s ambitions regarding clemency.  There’s no concrete reason to think the president won’t make good on his promise to use clemency more than has become normal, but that’s mostly because the bar is so low.  Since Richard Nixon was president — a useful marker here, because that’s when the era of mass incarceration started — there’s been a fairly steady downward trend in presidents’ use of this unique power, which is granted to them by the Constitution, and which entails mostly commutations (which partly or completely cut short sentences) and pardons (which essentially wipe out convictions).

Nixon granted clemency to 926 people.  Trump granted it to 237, bookending a period of more than 50 years, starting with Ronald Reagan, that saw the numbers drop below 500 and stay there, with one exception, through the present day.  (With the caveat that this period has seen two one-term presidents, Democrats have usually been more willing to use this power than Republicans, but not by much. )  The one exception was Barack Obama, who granted clemency, mostly in the form of commutations, to 1,927 people, the most since Harry Truman.  As of July 1, 2021, there were still 153,683 federal prisoners.

Biden has hinted that he’ll start sooner rather than later, possibly even before the 2022 midterms, which is a big deal because of the politics surrounding the issue.  The American antipathy toward clemency is one of the main motivators behind the downward trend in pardons and commutations: The appearance of being “soft on crime,” and the possibility that someone you free re-offends in some politically inopportune way, makes it hard for presidents to rationalize pardoning people or commuting sentences with any regularity. To minimize the political fallout, they usually wait until late to start granting the bulk of them.  Oftentimes, like in Trump’s case, most get rushed through during a president’s last days in office.

The effect is that clemency has become really unusual.  And when something is unusual, each decision becomes freighted with dramatic significance and scrutinized to the nth degree.  There have, of course, been good reasons to monitor presidents’ clemency decisions. Trump used it to reward imprisoned cronies and mislead voters.  Bill Clinton famously pardoned the husband of a wealthy Democratic donor.  But the scrutiny is overwhelmingly due to its rarity, not its infrequent abuses.  It’s been fashioned into an almost cosmically precious blessing to those who receive it, rather than a workaday part of a president’s duties.

Plenty of ideas have been floated about how to change this on a systemic level.  Rachel Barkow, a law professor of New York University, has spent years researching and developing ideas for how to make clemency more common, in part by making it less politically perilous and less vulnerable to conflicts of interest.  Both of these goals probably mean removing such decisions from the purview of the Justice Department, where they’re mostly handled today.  Federal prosecutors are responsible for these people being in prison in the first place.  Their decisions — which often determine which petitions get to the president, for example — inevitably run up against the fact that they’re often undermining, and potentially reversing, their own work.

To reduce the political risk, Barkow suggests establishing a clemency board, composed of interests from across the political spectrum, and spanning a wide range of people who work, have worked in, or have been impacted by the criminal legal system, to process requests and seek out candidates.  This would spread out responsibility enough to take the weight off any one person, thereby encouraging more commutations and pardons, especially for someone like Biden, who says he wants to grant them.  (Several states already have boards like this in place. Barkow, citing her research and others’, describes them as a “necessary precondition” where clemency is routine.)

Whatever the route, two things are clear about Biden’s plan so far: he hasn’t done anything yet, despite his signaling, and people close to him have indicated to the Times that he’s “not inclined to circumvent” the Justice Department — meaning he’s probably committed to an approach that preserves conflicts of interest and retains more political calculation than it needs to.  This is bad for normalizing clemency.  The president couldn’t end mass incarceration or even make a major dent in it, even with a more proactive strategy — the federal incarcerated population is too small as a portion of the whole, for one. But he can wield clemency symbolically, telegraphing to federal prosecutors which cases are worth pursuing, for example.  And in more practical terms, he can spare as many people as he can from what is functionally a life of terror, torment, and uncertainty, and can do so now and regularly moving forward to prevent needless suffering.

Jails and prisons are scary and often life-annihilating places, even in non-pandemic times, and there are untold numbers of people who shouldn’t be there.  Immediate fixes, though small, are available.  The longer Biden waits and the rarer presidential clemency stays, the more unusual it will continue to be.

A few prior recent related posts:

• Might Prez Biden use his clemency power relatively soon?
• New detailed polling reveals broad support for broad use of clemency power to commute sentences
• How about some clemency grants from Prez Biden to go with Second Chance Month, 2021 proclamation?
• ACLU urging Prez Biden to "use his clemency powers to bring home 25,000 people" from federal prisons 
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• How about Prez Biden and lots of Governors starting a tradition of granting lots of clemencies around Mother's Day? 
• Uninspired comments and plans emerging from Biden White House concerning clemency vision
• New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"