- Presidents have the sweeping ability to commute sentences, immediately freeing any federal prisoner.
- They can also grant pardons, which erase a criminal conviction from a person's record.
- But Biden, like others before him, has been hesitant to use the power early on in his presidency.
At this point in his presidency, Joe Biden has pardoned just two sentient beings: Peanut Butter and Jelly, 40-pound turkeys from Jasper, Indiana.
Former President Donald Trump, by contrast, had pardoned three: a pair of flightless birds and Joe Arpaio, the ex-Arizona sheriff known for illegally detaining Latinos.
Over the past three decades, that's pretty much been the norm, regardless of which political party claims the White House. Presidents Bill Clinton, Barack Obama, and George W. Bush all waited until at least their second year in office before granting clemency to a human being.
That's not because there is a dearth of potential candidates. As of October 2021, the Department of Justice had just under 17,000 pending petitions for clemency, up from 15,000 around the time of the 2020 election.
The problem, critics say, is one of urgency, or the lack thereof.
"Just because that's what the situation has been doesn't mean that's how it has to be," Nkechi Taifa, an attorney, activist, and leader of the progressive Justice Roundtable, said in an interview. "Where there's a will there's a way."
That's the message Taifa delivered to the Biden White House. In an early December meeting with Susan Rice, director of the Domestic Policy Council, and staff from the Office of the White House Counsel, she implored the administration to act now.
More than 7,700 federal inmates are currently on home confinement, granted release from prison on the grounds that they pose no security threat and are at a heightened risk of suffering severe complications from COVID-19. When the public health emergency is declared over, they could be forced to return. Leading Democrats, including Senate Whip Dick Durbin of Illinois, have argued it would be an injustice to send them back, urging the White House to consider granting clemency en masse.
In the meeting, White House staff appeared to agree, Taifa said. That's not the problem.
"Their rhetoric says that they understand what we're saying, and that they're working on it," she said. The issue is the conversation is taking place in December.
"If it's going to take this long for a first step, how long is it going to take for the rest?"
A 'bureaucratic morass' to wade through
Biden has never been a favorite of those advocating criminal justice reform.
In the 2020 primaries, he was arguably the most conservative Democrat running for his party's nomination. But he was also not the same man who, as a senator from Delaware, helped author legislation that put many people behind bars for nonviolent drug offenses.
On his campaign website, Biden promised to use his clemency power, like Obama, "to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes."
But others pledged to go further. Minnesota Sen. Amy Klobuchar, a former prosecutor, proposed a new clemency advisory board that could issue recommendations directly to the White House, bypassing what is currently a seven-step process.
"What we've got is this bureaucratic morass," Mark Osler, a former federal prosecutor, said in an interview. "There's seven levels of review, one after the other, and the first four levels are all in the Department of Justice, which of course is conflicted because they're the ones who sought the sentence in the first place."
The first step is the Office of the Pardon Attorney, which is currently led, on an acting basis, by Rosalind Sargent-Burns, a career department lawyer former Attorney General William Barr appointed. They then present their recommendations on who should get clemency to the deputy attorney general's office, where another staffer reviews it and passes it on — maybe — to their boss. Then it goes to the staff for the White House counsel, then the actual counsel, then an aide to the president and then, if all goes well, to Biden himself.
The president could, at any time, bypass this process. Trump did when he pardoned Arpaio and his other allies, such as Roger Stone and Steve Bannon.
If anything, Osler, now a professor at the University of Saint Thomas, told Insider he thinks Biden is too committed to the way things were. It's one thing to respect the Justice Department's career bureaucracy when it comes to deciding who deserves prosecution but, he said, "it doesn't make sense in terms of clemency."
A White House official told Insider the president is "exploring the use of his clemency power" for non-violent drug offenders who were moved to home confinement at the start of the pandemic, a transfer authorized by the March 2020 CARES Act — specifically, those with fewer than four years left on their sentences (one activist who has engaged the White House expects those with less than two years remaining will also be excluded).
"At the same time," the official said, Biden "continues to consider requests for pardon and commutation that are submitted in the ordinary course."
That's not exactly what reformers want to hear. While Obama granted clemency to more than 1,900 people — compared to just 200 under George W. Bush and 238 under Trump — the byzantine process for requesting one's freedom, "the ordinary course," means many more deserving cases likely never reach the president's desk for consideration.
The American Civil Liberties Union has called on Biden to immediately grant clemency to 25,000 people, namely those serving sentences longer than those handed out today, nonviolent drug offenders, and the elderly.
"If it's unjust at the end of the term," when presidents typically wait to grant pardons, "it's unjust during the entire term," Cynthia Roseberry, deputy director at the ACLU's national policy advocacy department, told Insider.
She argued that it would be a failure if the administration tried to achieve its stated goals — of racial justice and correcting past wrongs — by relying on prosecutors and judges who sent people to prison to co-sign petitions for release.
"Justice hasn't been done under that draconian system, and we can't expect justice from that kind of system going forward," she said. "It has to be radically changed."
The Department of Justice declined to comment on how many petitions for clemency have received favorable recommendations within the department or have been referred to the White House. It is impossible to say for sure, then, how much the delay in granting pardons is due to bureaucracy or stalling by political actors.
But sticking with the opaque status quo is itself a political decision — the president could unilaterally discard it — and it's a disappointment, if not a surprise, to people like Osler. He's not expecting big things.
"I haven't heard anything from the administration that gives me hope," he said.
Reform, denied
In 2020, there appeared to be a new consensus.
A "unity" task force composed of Biden supporters and those backing Sen. Bernie Sanders of Vermont issued a report endorsing the creation of a independent board to recommend pardons, saying it would "ensure an appropriate, effective process for using clemency, especially to address systemic racism." The call also made it into the Democratic Party platform.
But it didn't make it into the president's agenda. Respect for institutions, however slow and flawed, is one explanation. Bureaucracy could also explain the lack of pardons. It's not clear where in the process the 17,000-odd petitions for clemency are — if they are sitting on the president's desk or in a cabinet somewhere else in the White House or Department of Justice.
The fear of political fallout could be another reason. Reports of someone who received a presidential pardon going on to commit a serious crime are extremely rare. But if it happens, that's a television ad; the benefits of mercy toward those who go on to lead quiet lives in obscurity are perhaps less obvious.
The current political environment at least raises the question. Since the start of the pandemic, major cities in the US, red state and blue state alike, have seen an uptick in violent crime. Daring instances of smash-and-grab robberies have gone viral. And the opposition party has been eager to pin blame on the White House, despite the trend beginning under its previous inhabitant.
"It's less about the review process and more about power," Jeffrey Crouch, an expert on federal clemency at American University, told Insider. New presidents are, of course, focused on passing the big-ticket items in their agenda — think infrastructure and "building back better."
They "may want to avoid potential controversy before a midterm election," Crouch added.
Kermit Roosevelt, a law professor at the University of Pennsylvania, likewise thinks pardons are a victim of competing priorities, and not something that a new administration wants leading the news cycle.
"Some pardons are probably politically popular," he said, "but many of them don't actually look that good, which is why presidents tend to issue a lot just before leaving office."
The vast majority of pardons, in fact, are uncontroversial. No one, for example, criticized Trump when he granted clemency to Alice Marie Johnson, a Black woman in her 60s who had already served two decades behind bars for a nonviolent drug offense.
But it is the "bad" pardons — of political allies, be they Trump's former aides or, under Clinton, Democratic donor Marc Rich — that tend to stick out.
The president's unique, unchecked power to commute sentences and free the imprisoned could, then, be seen as a potential liability with little upside.
But fear is not typically a good basis for policy.
"I think it reflects an outdated view of the clemency power as something politically risky," Ames Grawert, senior counsel at the Brennan Center's Justice Program, told Insider.
There may always be demagoguery associated with incarceration, but in recent years there has been increasing bipartisan agreement that too many people have been locked up for too long. Indeed, thousands of federal prisoners are serving sentences that would not be handed out today thanks to 2018 reform legislation that Trump signed into law.
"I understand the fear of backlash for perceived leniency — as if any tampering with the federal system, which is excessively punitive through and through — would be 'lenient' vs. 'just,'" Grawert said, "but I don't know if there's a constituency for that."
'I pretty much lost all hope'
On the surface, an article The New York Times published last May was a victory for reformers.
"Biden Is Developing a Pardon Process With a Focus on Racial Justice," the headline asserted, and this was the substance: that the president would begin to aggressively employ the power of his office ahead of the 2022 midterm elections — "identifying entire classes of people who deserve mercy."
But to Rachel Barkow, a vice dean and law professor at New York University who is one of the nation's leading advocates of clemency reform, the piece was anything but inspiring.
"It was kind of the death knell," she said in an interview. "There were so many red flags that this was going to be a disaster that I pretty much lost all hope then."
For starters, the piece said the Biden administration would continue to "rely on the rigorous application vetting process" at the Department of Justice. That process was established, in part, not by the US Constitution — which does not mention it at all — but by former President Ronald Reagan, whose administration issued strict guidelines on who is even eligible to ask for reprieve.
What the White House is calling "the ordinary course" was, Barkow said, an "historical accident." And not a best practice.
"No state does this," she said. "'Ordinary course' is not that you ask the same prosecutors who brought a case, 'Should this person now get clemency?' No one in their right mind would set clemency up that way."
Every administration deals with competing priorities, and Biden, objectively, was dealt a bad hand, inheriting an economy still struggling to recover from a pandemic that continues to kill more than a thousand Americans every day. And his agenda is constrained by a slim Democratic majority in the House and a 50-50 Senate.
But that's also why people like Barkow are so disappointed.
They're passionate about freeing those they see as unjustly incarcerated, but they are not simply naive idealists, unaware of political realities. Clemency is an area where Biden can act alone and immediately improve lives. Democrats may feel constantly on the defensive over issues of criminal justice, but none other than Trump saw clemency as such a feel-good winner that his campaign ran a Super Bowl ad telling the story of one woman he freed from prison.
"Anyone who has spent any time with people who are incarcerated, with their loved ones, who have talked with people who were formerly incarcerated, would get the urgency of this," Barkow said. "You wouldn't be able to sleep at night."
But there doesn't appear to be urgency at the White House.
So far, roughly 1,200 petitions for pardons or commutations have been closed "without presidential action," per the Department of Justice. Each day, loved ones are separated due to policies that the current president helped shape, which he now says were mistaken — contributors to racial injustice — and which he has thus far declined to ameliorate.
"It's very depressing," Barkow said. "I think it's words on paper," she said of the administration's talk of change.
"It's just not really something that they're feeling in their bones. And as a result, it's not getting done."
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