Could Prez Biden’s decision “to stand down” impact his use of his clemency power?
There are, of course, so many political and policy elements to President Joe Biden’s decision to end him campaign for re-election or, as he put it, “to stand down and to focus solely on fulfilling my duties as President for the remainder of my term.” But, as this is a sentencing blog, I am particularly interested in considering the possible impact on sentencing politics and policy. And the unique and historic sentencing power that all presidents possess is the constitutional power to grant clemencies or, as Article 2 of the Constitution puts it, the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
This Axios piece from last week, headlined “Why presidents are wielding their pardon powers less and less,” talked a bit about some modern clemency realities, and here are some excerpts:
A trend toward a less generous executive has emerged in U.S. clemency history. So far, President Biden has been no exception…. But beyond sweeping proclamations, Biden has used his pardon power more sparingly than his modern predecessors on ordinary pardon cases, according to Justice Department data… Biden used them to pardon prior federal offenses of simple marijuana possession and veterans convicted and forced out of the military because of their gender identity or sexual orientation.
The big picture: Experts point to structural and political reasons for the shift toward a generally more restrained approach to clemency petitions.
Throughout U.S. history, the system has become deeply entangled in bureaucratic process, leading to a backlog of ordinary petitions, said Mark Osler, a legal scholar who advocates for sentencing and clemency reform. What “Biden seems to be stuck with is a system of analysis that doesn’t work and hasn’t worked for his predecessors either,” Osler said. He pointed to a series of seven valves of review a petition must pass through — a pipeline Osler said lengthened under the Biden administration with additional input from the Domestic Policy Council.
Frank Bowman, a legal historian who has written extensively about the pardon power, cited the “nasty politics of our era” as one driving factor. “Presidents have become hyper-cautious about making sure that they don’t create the grist for the opposition mill,” Bowman said.
By the numbers: President Obama granted the most acts of clemency — 1,927 pardons and commutations combined — dating back to Harry Truman, according to DOJ data. But that’s just over 5% of the petitions Obama received. As of May 2024, Biden had formally granted 153 petitions for clemency — that’s 1.6% percent of all requests….
DOJ data shows that every president between Ford and Trump used his clemency power during his final days in office. Obama issued 1,185 clemency actions in just over three months in 2017 before he left office. That’s just over 61% of all of the petitions he approved.
The political concern about “creat[ing] the grist for the opposition mill” seems likely to limit Prez Biden’s eagerness to grant many (or perhas any) clemencies before Election Day because his party is on the ballot, even though he is now a distinctive kind of lame duck. But, as noted here (and likely forgotten everewhere else), in late October 2020, then-President Trump granted a few commutations a few weeks before the 2020 Election, and it is certainly possible that certain kinds of clemency grants might be seen in certain quarters as politically beneficial as the election approaches.
More obviously, after Election Day and no matter who wins, Prez Biden will be an even lamer kind of lame duck until January 20, 2025. I presume a whole lot of advocates will be advocating for Prez Biden to make robust use of clemency at that point. Notably, Prez Biden’s son, Hunter Biden, is supposed to be go to trial on federal tax charges on September and to be sentenced on gun-related charges sometime thereafter. When still a candidate a month ago, Prez Biden pledged not to grant a pardon or commutation to his son. But I am inclined to guess his views may evolve on his son, especially after the election. And more broadly, in his final months in office, I wonder if Prez Biden might be inclined to consider a broader set of potential set of clemency grants across a broad range of offenses and offenders. I guess time will tell.