In the final days of his presidency, Donald Trump has carried on an unfortunate tradition: last-minute pardons that reek of corruption. He is expected to issue up to 100 pardons on his final day in office. The president’s clemency power is nearly unlimited, which means Trump is only constrained by his own sense of what he can get away with. His pardons are consistently, cartoonishly sordid; his friends and allies are first in line, followed by disgraced Republican officials, murderous law enforcement officers, and Lil Wayne. Trump’s final pardon spree is certain to tarnish clemency’s public image, which has already been battered by his predecessors. In light of his abuses, scholars and commentators have declared that the pardon power should be diminished or abolished. These critics suggest the tool has outlived its usefulness and presents too great an opportunity for self-dealing.
This jaundiced view of clemency is understandable. It is also misguided. The pardon power exists for a very good reason, and its exploitation at the hands of crooks and con men should not give cause for its eradication. It is not some obsolete relic from a simpler era, but a vital safeguard against unjust convictions and disproportionate sentences. The United States’ federal prisons are filled with good citizens who have no business being behind bars. It is unfortunate that Trump has overlooked these individuals in favor of his vile cronies. It would be catastrophic if Trump’s actions prevented future presidents from using the pardon power to free the people who actually deserve clemency.
For most of U.S. history, the pardon power was not particularly controversial. The Framers added it to the Constitution to ensure that justice would not “wear a countenance too sanguinary and cruel.” They envisioned it as a safety valve, and that’s exactly how it operated: Presidents issued hundreds of pardons a year in the 19th century, viewing the process as a routine administrative duty. (The chief deviation from this norm was Andrew Johnson’s mass pardon of Confederate soldiers, which does not appear to have dissuaded his successors from using the power as intended.) After Congress instituted parole in 1910, presidents increasingly used pardons to restore civil rights to convicted felons who were already released from prison.
Perversely, as Congress deemed more and more conduct a federal crime—thereby exponentially increasing the federal prison population—presidents grew less and less willing to grant clemency. The pardon power became more divisive after Gerald Ford preemptively pardoned Richard Nixon and Jimmy Carter pardoned Americans who evaded the draft during the Vietnam War. Its reputation went down from there: George H.W. Bush notoriously pardoned key players in the Iran-Contra scandal, and Bill Clinton pardoned a glut of questionable associates on his last day in office, including his half-brother and the billionaire donor Marc Rich.
In the 21st century, the conventional wisdom seems to be that presidents deploy clemency for self-serving purposes in their last weeks or days, when they won’t face political consequences. In truth, it was Clinton who established this tradition—and it’s Trump who is entrenching it. Since losing the election, Trump has pardoned corrupt former Republican congressmen, Blackwater guards who massacred civilians, allies convicted in Robert Mueller’s probe, and a police officer who repeatedly had her dog attack sleeping and surrendered suspects. As of late December, 88 percent of people who received clemency from Trump had personal or political connections to him; that number will probably be higher by noon on Jan. 20.
Joe Biden will have a few tools at his disposal to reform the criminal justice system beginning on day one. His Justice Department, for instance, can implement policy changes like directing prosecutors to avoid criminal charges with draconian mandatory minimum sentences and rigorously implementing compassionate release. But these options pale in comparison to clemency. Barack Obama granted nearly 2,000 pardons and commutations during his two terms, focusing on people convicted of nonviolent drug offenses. In the process, he laid the groundwork for a systemic approach to clemency that Biden should dramatically expand upon. There are currently more than 150,000 people in the federal prison system; nearly half of them were convicted of drug offenses. Many of these people were sentenced under harsh drug laws that Biden authored and now publicly regrets. Simply releasing or shortening the sentences of people convicted under these drug laws would put a huge dent in the federal prison population. Biden can also commute federal death sentences to life in prison, effectively ending the federal death penalty.
But he shouldn’t stop there. People convicted of violent offenses also deserve consideration, and Biden should look to experiments at the state level when crafting his clemency policies. D.C., for instance, has passed a series of measures that allow incarcerated people to request early release after serving 15 years for a crime committed before the age of 25. These laws reflect the scientific consensus that most young people age out of violence as their brains develop. It may not be politically expedient to commute the sentences of violent offenders. But the reality is that keeping rehabilitated people locked up, at a cost of more than $37,000 a year per person, benefits no one. True reform will require lawmakers—up to and including the president—to acknowledge that even people who committed horrible crimes in their youth deserve a second chance.
There are sure to be many efforts to root out corruption and rein in executive powers in the wreckage of the Trump administration. The presidential pardon powers have been badly misused, but that doesn’t mean they’re inherently suspect. The injustice is not merely that Trump granted clemency to his odious friends, but that he did not grant clemency to tens of thousands of other people who deserved it. If Democrats don’t make this crucial distinction, they risk scaring Biden away from using clemency at all. As with so many other scandals over the last four years, the problem here isn’t executive power; it’s the bottomless corruption of the man who wields it.
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