Joe Biden’s victory in 2020 was largely premised on one promise: he would be different than Donald Trump. In several key areas, that has certainly been true as he has radically shifted foreign policy, spending priorities, and judicial appointments, among other distinctives. With one important constitutional duty, though, Biden has stayed too close to Trump: the pardon power.
Like Trump, Biden has used the tool of clemency for symbolism rather than substance, while ignoring clemency’s official process. More than 17,000 petitions have piled up — an historic backlog — and many petitioners have been waiting for answers for five years or more.
Like Trump, Biden has simply ignored those thousands of people waiting for consideration of their heartfelt pleas for clemency; in fact, he has failed to deny a single petition by presidential action even as the pile has grown into a tower. While many clemency petitions are worthy, many others are obviously not, and it shouldn’t be hard to say “no” to the weakest petitions. Like Trump before him, Biden seems either frozen in inaction or just doesn’t care. Worse, Biden has neglected the duty given him by the Constitution to actively grant worthy cases. The 82 clemency grants he has made to individuals (and the vague pardon to unnamed marijuana possessors) are more about signaling and politics than helping real people.
Biden waited until April 2022 to finally give anyone a sentencing commutation, and the 75 people he selected were all serving sentences for “non-violent drug offenses.” Just about all of them were already released from prison during the Trump administration under the CARES Act, which let the attorney general release people to serve their sentences on home confinement because they were especially vulnerable to COVID. The grants, in other words, did very little to help anyone in prison or signal any concern with mass incarceration — they mostly just let a relatively small group of people who were out of prison feel assured they wouldn’t be yanked back.
One result of this lack of action is that Biden has failed to achieve his campaign pledge to reduce the federal prison population. In fact, it is going the wrong way, and the federal prison population has grown under Biden’s watch.
As with commutations (which shorten a sentence) Biden’s record on pardons (which eliminate some of the effects of a conviction and are usually given after a sentence is completely served) is also more about rhetoric than real results. He issued three pardons in April and then announced in October that he was giving “full, complete, and unconditional pardon[s]” to people who were convicted of simple marijuana possession. That proclamation was big on fanfare, but light on practical significance. No one is currently in federal custody for simple possession of marijuana. The only people who will benefit from this grant, like almost all the people on the list in April, have already been released from prison (or were never incarcerated at all).
To be sure, pardons can be valuable because there is no other federal mechanism for someone to expunge a conviction from their record. But if one is prioritizing how to spend limited presidential capital on clemency, clearly the group most in need are the people whose freedom is being denied. His “turkey pardon” last month only put into stark contrast his failure to grant freedom to humans. If Biden had taken the same approach to turkeys that he did toward people with his marijuana pardons, he would simply announce he is freeing wild turkeys in a certain geographic area and then wait for them to identify themselves so he could give them their official proclamation.
Trump’s record on clemency reflected his character. He largely gave breaks to fraudsters, loyalists, and people being investigated for their involvement in Trump-related activities that themselves might be criminal. It was a gross display of cronyism that showed Trump prized fealty to himself above all else, paired with inaction towards so many who presented stories of real reformation in their clemency petitions.
The best way to describe what Biden’s clemency record reflects about his character, is cowardice. He seems petrified to release anyone currently incarcerated, and he is equally afraid of telling anyone who has applied that the answer is no. He wants to look like he is doing something with these symbolic gestures, but his clemency record — just like his overall record on criminal justice issues — is abysmal. It may be that he just doesn’t care about clemency and what it represents, and there is no mercy in that.
Barkow is a professor at NYU School of Law and former member of the U.S. Sentencing Commission. Osler is a professor at the University of St. Thomas School of Law in Minneapolis.
![In a narrow vote this week, the Federal Trade Commission approved a rule that will ban the vast majority of noncompete clauses by U.S. employers, which have long prevented workers from switching jobs or setting out on their own. In doing so, the agency did its duty to protect American economic dynamism and opportunity, nothing less, nothing more. We hope that’s the clear conclusion of the courts that will now rule on a lawsuit being brought by the Chamber of Commerce, which has strenuously supported this anticompetitive practice. Of the arguments that the business group and other opponents have rolled […]](https://www.nydailynews.com/wp-content/uploads/2024/04/GettyImages-1820955015.jpg?w=490 "In a narrow vote this week, the Federal Trade Commission approved a rule that will ban the vast majority of noncompete clauses by U.S. employers, which have long prevented workers from switching jobs or setting out on their own. In doing so, the agency did its duty to protect American economic dynamism and opportunity, nothing less, nothing more. We hope that’s the clear conclusion of the courts that will now rule on a lawsuit being brought by the Chamber of Commerce, which has strenuously supported this anticompetitive practice. Of the arguments that the business group and other opponents have rolled […]")
