It’s time for President Biden to use his vast clemency power

Almost a year into his presidency Joe Biden has yet to grant a single pardon or commute a single sentence. Not one.

At a time when much of his agenda is tied up by congressional shenanigans, the president might be expected to exercise those powers he has — and the clemency power is supreme among these: It is his alone to use.

Meantime, clemency petitions pile up in the pardon attorney’s office in the Department of Justice. There are now more than 18,000 of them awaiting review or action. The thousands of people seeking relief languish in the dreadful conditions of even the United States’ best run penal institutions.

It is long past time that the president picked up his pen and signed the documents that would bring new hope and new life to so many. And Biden also ought to take steps to reform the cumbersome bureaucratic process of clemency petition review.

This two-step would allow the president to the lead the way toward reforms he himself has advocated.

During his 2020 campaign Biden raised the hopes of criminal justice reformers and advocates for prisoners that he would lead that fight. He spoke openly about the problems of policing, prosecution and prisons, and offered a comprehensive plan for addressing those problems and their disproportionate impact on persons of color.

He seemed to get it.

He also raised expectations by promising to use his clemency powers vigorously “to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes.”

The 2020 Democratic Party Platform intensified that sense of expectation.

It went out of its way to praise the clemency record of what it called the “Obama-Biden administration.” It expressed pride that it “commuted the sentences of more than 1,700 people serving unjust sentences following thorough review of their individual cases.”

The party supported “the continued use of the President’s clemency powers to secure the release of those serving unduly long sentences.”

The platform also embraced reforming the existing clemency process. It supported “establishing an independent clemency board to ensure an appropriate, effective process for using clemency, especially to address systemic racism and other priorities.”

The United States Constitution grants the president the exclusive power to grant “pardons and reprieves.” That is contained in the same section as the designation of the president as commander-in-chief, which suggests the importance of the clemency power to the Founders’ vision of the presidency.

Alexander Hamilton defended that vision and its conception of the clemency power as a remedy for the kind of injustices which today plague our criminal justice system. He said that it should be subject to as few restrictions as possible:

“Humanity and good policy,” Hamilton wrote, “conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed… [W]ithout an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”

John Marshall, the first Chief Justice of the Supreme Court, agreed with Hamilton and called clemency “an act of grace, proceeding from the power entrusted with the execution of the laws.”

Twenty years after Marshall, another Supreme Court Justice, James Wayne, said that “Without such a power of clemency, to be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy.”

And, in 1866, Justice Stephen Field wrote that the president’s clemency power “is unlimited, with the exception [in cases of impeachment] … This power of the President is not subject to legislative control … The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.” 

But presidents have long delegated to the Department of Justice administrative responsibility in matters of clemency. An 1865 Act of Congress established the “office of the clerk of pardons” in the Justice Department. In 1870 that office became the “office of the attorney in charge of pardons,” and in 1894 it became the “office of the pardon attorney.”

From then until now, the pardon attorney has received, investigated and reviewed clemency petitions. But the pardon attorney’s role is only the first step in the process. Their recommendations go to the deputy attorney general’s office, then to the White House counsel, and only then are recommendations for clemency forwarded to the president.

Law professor and former federal prosecutor Mark Osler calls the current clemency process a “bureaucratic morass.” He singles out for particular criticism the Department of Justice. It is, Osler points out, “conflicted because they’re the ones who sought the sentence in the first place.”

Efforts to clean up this morass are long overdue.

The president should support legislation introduced last month by Rep. Ayanna Pressley (D-Mass.) to change the current process and follow through on the Democratic Party’s promise to create an independent clemency board to receive and consider petitions before sending them directly to the president.

It is, of course, hard to know whether Biden’s paltry clemency record results from his institutionalism and deference to established procedures, from careful political calculation, or from a sense that the administration simply has too many things on its plate. He may also want a clemency cooling off period in the wake of President Trump’s scandalous use of that power.

Whatever the cause, the president’s clemency power should not be left to gather dust on the shelf.

Biden might start by following up on Attorney General Merrick Garland’s Dec. 21 announcement that the thousands of non-violent federal inmates who were released from prison during the COVID pandemic will be allowed to remain in home confinement for the time being.

The president should go one step farther and heed the call of advocacy groups and members of his own party like Sens. Dick Durbin (D-Ill.) and Cory Booker (D-N.J.) to pardon them. Doing so would insure that they never have to return to prison, a decision which surveys show would have broad public support.

And maybe then the president would feel liberated to use the “benign power of mercy” as he so wisely promised to do before he entered the White House. Until that happens, thousands of people sit waiting.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty.” Follow him on Twitter @ljstprof.