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Today President Joe Biden commuted the sentences of roughly 1,500 Americans and issued pardons for 39 persons convicted of non-violent crimes. For the remainder of Biden’s term, any use of the pardon power will be shadowed or seen through the prism of his pardon of his son, Hunter Biden. But I wanted to take this opportunity to say something broader about the pardon power. And I want to be clear that this isn’t an opinion that is downstream of or related to the Hunter Biden pardon. I’ve made similar arguments a number of times going back probably 20 years.
Put simply, we don’t have anywhere near enough pardons: both at the federal and the state level.
In fact, much of what passes for pardons or clemency today aren’t really pardons at all. They’re basically fake clemency. Set aside the controversial pardons of recent years. Most presidents at the end of their terms issue pardons to a range of meritorious individuals. They each come with a backstory of bad choices later redeemed by selfless altruism, service or other exemplary conduct. Or they simply turned around their life against the odds. But in almost every one of these cases the recipients have already done their time! They took responsibility; did their time; expressed remorse and then went on to live an exemplary life. What they get is an almost entirely symbolic record wiped clean. That’s not nothing. It’s a nice recognition. It’s also entirely different from an innocent person having a wrongful conviction overturned — a vindication of factual innocence. That remains a big deal even for someone who has already served a lengthy sentence. But it doesn’t free any one from jail.
It is at best a thin, thin clemency.
Part of this has to do with an office at the Department of Justice called the “pardon attorney” and the guidelines for seeking executive clemency. That is the person who officially evaluates requests for clemency. And that thinness is bundled into the process. To apply for clemency you need to have taken responsibility for your actions and have completed your sentence or paid your fines or whatever else. In other words, all the real clemency is rung out of the system in advance. The president doesn’t have to use the pardon attorney. He didn’t with his son, probably for obvious reasons. But it’s always looked askance at when a president doesn’t.
The pardon power itself is an odd thing. Of all the powers invested in the president under the federal Constitution, it is the one most clearly based in the theory of monarchy. Even today, crime in the United Kingdom is at least notionally a violation of the “King’s peace.” It is an offense against the monarch themselves and the protection of public order they provide to society. Since it’s an offense against them they can forgive it. There’s a bit more complexity to it. But that’s the essence of it. It is inherently arbitrary. It doesn’t need to right a wrong. It’s mercy, unmerited grace. Indeed, unlike most other aspects of law, it’s not even supposed to be fair. One person gets it and another doesn’t.
There’s at least a decent argument that the whole thing — the executive pardon power — shouldn’t exist at all because that volitional, arbitrary power is pretty hard to square with our modern ideas of fairness and equity as well as electoral office. But it does exist and it’s good that it does. Because we should have more clemency, more mercy, rather than less.
The criminal justice system is inherently brutal and merciless. That’s even more the case with the increasingly lengthy statutory prison terms which became common in the U.S. in the second half of the 20th century. But really it’s inherently so, even without those changes. We can make it better and more humane. But it’s an intrinsic feature. The presence of the pardon power puts a really critical element of mercy into the process that adds a critical looseness and give into a system that is altogether cold and unbending. Mercy is possible. Some get it.
If I’m understanding today’s clemency announcement, it does at least reduce the terms of some people. People got sent to home confinement during the pandemic. And for people who already did one year of home confinement, they can have the remainder of their sentence commuted. That’s great. Earlier during his term, Biden issued a broad pardon for a class of people with convictions tied to marijuana. I saw a news report that even though it notionally applied to a few thousand people, only a few hundred had submitted the paperwork to get the actual pardon. That’s not a huge surprise. They weren’t getting sprung from jail. Those people had already served their sentences. It’s not nothing but it’s not much. If I were the President I’d find some big class of people currently doing time for marijuana offenses and simply end their punishment today. Free. You’re done. Walk out of prison today. And we don’t have to limit executive clemency to pot. Find a thousand people in the federal system who get released from prison every New Year’s Day.
Clemency used to be much more common in the past. One hundred years ago criminal justice was in most respects far more brutal. Executions were comparatively common. Many of the bare minimum rights prisoners have today weren’t even thought of. But governors pretty frequently pardoned people. And not just the thin or phony pardons we’re used to today. Sometimes it was as simple as the jails were too full. Corruption also played a role. Governors would get in trouble for selling pardons. (Trump has antecedents.) But along with parole, which has also been greatly clawed back over the last half century, clemency of various forms was granted far more frequently than today. It was treated as a much more natural and necessary part of the criminal justice equation. Not every sentence needed to be served until the final day.
Presidential pardons can right certain wrongs that cannot be put right through the law — laws we no longer believe should have been on the books or which were enforced in an inappropriate way. It can right certain wrongs that the law does not or cannot recognize as wrongs. But we shouldn’t short change the value of the very arbitrariness of the process, despite “arbitrariness'” not being a word that is seen very positively today. Certainly some due diligence is in order. If the American presidency got more into the clemency business, which it should, you wouldn’t want to be releasing people who show every sign that they’d go back to committing more crimes, especially violent crimes. (That would be a better role for the pardon attorney.) Inmates who are model prisoners should get first consideration. But it shouldn’t just be down to rehabilitative feats of strength. Criminal justice is by its nature brutal and merciless. Incarceration, even when merited and necessary, involves the diminution or total loss of hope. Injecting more mercy, more hope into the system, would be a positive good, in addition to more practical benefits.