Last Thursday, the White House announced that President Biden was “granting clemency to nearly 1,500 Americans – the most ever in a single day.” The beneficiaries of Biden’s act include people “who were placed on home confinement during the COVID-19 pandemic” and “39 individuals who were convicted of non-violent crimes.” Most of those people had committed drug-related offenses.
As the Christian Science Monitor notes, Biden’s action “comes on the heels of two other presidential pardon matters that have grabbed headlines of late: a Politico report last week that President Biden was considering preemptive pardons for those who might be targets of the incoming Trump administration and a pardon for his son Hunter, convicted earlier this year of federal gun and tax charges.”
Biden’s mass clemency is a refreshing turn for a president who, until recently, used his clemency power more sparingly than his recent predecessors. Hunter Biden was only the 26th person who Biden pardoned in four years.
In contrast, as CBS News reports, during his first term, President Trump “granted 237 acts of clemency (143 pardons and 94 commutations).” President Obama “issued 212 pardons and 1,715 commutations while in office, including for 568 people who were serving life sentences.”
Obama also launched the Clemency Initiative, which allowed federal prisoners to apply for leniency, especially those serving for nonviolent drug offenses. Biden has done little to ease the logjam of more than 8000 petitions for clemency that have been pending throughout his presidency.
Still, as the White House took pains to remind us, Joe Biden is “the first President ever to issue categorical pardons to individuals convicted of simple use and possession of marijuana, and to former LGBTQI+ service members convicted of private conduct because of their sexual orientation.”
And while what he did should not be dismissed or downplayed, it may be less significant than first meets the eye. That is because Biden went after the low-hanging fruit of the federal prison system.
He granted clemency to people who had already been released from prison under a COVID-inspired compassionate release program. All had been serving their sentences at home “for at least one year.”
Those who benefited from what Biden did are non-violent offenders who have proven they can live beyond prison walls. As the White House put it, they “have successfully reintegrated into their families and communities…” and shown their commitment to rehabilitation by securing employment and advancing their education. The 39 individuals receiving pardons today…have turned their lives around... Many of them have used their experiences in the criminal justice system to inspire and encourage others.”
It seems to be simple justice to spare them from returning to prison under the Trump Administration. That is why there is not much risk of political blowback in granting clemency to the kind of non-violent offenders that Biden targetedlast week..
Frankly, whatever comes next, it is good to see Biden exercising his clemency muscles more vigorously with barely a month left in his term. But there are hard tests yet to come, including whether he will grant clemency preemptively to prospective targets of Trump’s second-term vengeance and the forty people on federal death row.
For most presidents, granting clemency is seldom an easy call. Doing so is often controversial and politically risky, even if it is done at the end of theirs term.
That is why presidents like Biden tend to limit pardons and commutations to people who “deserve” mercy or have been or might be the victims of injustice. That is why the Biden White House bent over backward to assure the American public that the president’s mass clemency would “advance equal justice under law and remedy harms caused by practices of the past.”
It also explains why, when Biden pardoned his son, he insisted that Hunter was “being selectively, and unfairly, prosecuted” and “was treated differently.” The president even seemed to lend credence, wittingly or not, to Donald Trump’s frequent charges about the politicization of justice under the Biden Administration.
Speaking about his son’s prosecution, the president claimed that “raw politics has infected this process, and it led to a miscarriage of justice.”
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Biden was pushed into this awkward position because the language of justice has become the only acceptable language to justify a pardon.
It wasn’t always this way. In fact, in 1833, in the first case about the pardon power decided by the United States Supreme Court, Chief Justice John Marshall wrote, “A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.”
It is, Marshall observed, “the private though official act of the executive magistrate, delivered to the individual for whose benefit it is intended and not communicated officially to the court.” The grace about which Marshall wrote is, he conceded, beyond the reach of legal compulsion or regulation. It is left to the president’s unfettered discretion, and its wise use depends on the judgment and propriety of those who wield it.
In the words of the English legal theorist William Blackstone, clemency is “a court of equity in [the president’s] own breast.” Because of this quality, Marshall worried that if it were misused, the pardon power might “prove fatal to the great principles of justice.”
To illustrate this danger, he explained, "A pardon may be conditional, and the condition may be more objectionable than the punishment inflicted by the judgment. The pardon may possibly apply to a different person or a different crime. It may be absolute or conditional. It may (even) be controverted by the prosecutor…”
Unlike justice, grace or mercy of the kind Biden showed in his mass clemency is precisely what cannot be deserved. Grace, as one commentary explains, “is getting what we don't deserve, and mercy is not getting what we do deserve.”
Another commentary reflects a similar understanding. Mercy, it says, “is the act of withholding deserved punishment, while grace is the act of endowing unmerited favor.”
In this understanding, mercy always involves refusing to give someone what they deserve. And that courageous refusal is lost when presidents like Biden conflate the two.
Let me be clear. It takes plenty of courage to rectify miscarriages of justice or to do justice at all. But it takes even more courage to be merciful to people who do not deserve it.
That is because mercy cannot be adequately explained. And courts have long recognized this ineffable quality of mercy. As one explained over a century ago: “An executive may grant a pardon, for good reasons or bad, or for any reason at all, and his act is final and irrevocable.”
So where does that leave Biden? It remains to be seen if he will do more than what he did in his record-breaking mass clemency. The question is whether, in his remaining time in office, Biden will use clemency where the risk seems greater. Will he offer grace and mercy to people who have committed violent crimes?
I hope that what he did with his mass clemency will not end up being another kind of Biden half-measure. There is more work to be done with the clemency power.
As the White House recognized in its statement accompanying Thursday’s clemency, “(T)he United States is a nation of second chances.” Taking that seriously would require the president to “look in every corner of the federal prison system, including its death row, and try to tame its undue harshness and cruelty.”
The question that remains is this: Does Biden have the will and the courage to do so?
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