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Biden’s secret weapon for criminal justice reform

The president has the power to help reverse mass incarceration — but Biden hasn’t used that power yet.

President Joe Biden at a White House event to sign an executive order on the economy on February 24, 2021.
President Joe Biden at a White House event to sign an executive order on the economy on February 24.
Doug Mills/Pool via Getty Images

As a senator in the 1980s and ’90s, Joe Biden spearheaded many of the laws that escalated America’s war on drugs — including mandatory minimum sentences and other harsh penalties that fueled a population explosion in federal prisons. Since then, Biden has acknowledged he got some of this wrong.

Now he has a chance to right those mistakes — and to do so without Congress — by tapping into the president’s vast pardon and commutation powers.

Historically, presidents have used these powers in one-off cases to reduce criminal penalties deemed excessive or unfair or for personal or political favors.

But some advocates have argued for a ground-up rethinking of clemency: The president could reform the whole process to systematically cut sentences for federal inmates caught in the frenzy of America’s drug war and mass incarceration.

Rachel Barkow, a New York University law professor and expert on clemency, told me there are essentially two important pieces to reform.

First, changing the process. Currently, the Department of Justice’s Office of the Pardon Attorney oversees clemency requests. But the Justice Department is also the agency that prosecuted the people asking for a reprieve. That conflict of interest helps explain why the pardon office is understaffed and moves slowly, leading to the current petition backlog of 14,000.

The Justice Department “is a biased decision maker,” Barkow said. “States don’t have it set up that way. It’s kind of an oddity the federal system ended up like that.”

The president could move the process out of the Justice Department. For example, he could set up an advisory board that would handle clemency requests before they go to the president’s desk, as Sens. Amy Klobuchar (D-MN) and Cory Booker (D-NJ) proposed during their presidential campaigns.

Then there’s the question of who gets clemency. This has been a wildly inconsistent process throughout US history — sometimes coming down to the president personally knowing a petitioner. But the president or his advisory board could set standards, targeting inmates with long sentences (especially for nonviolent crimes), those under mandatory minimums, or people who have been rehabilitated in prison.

Biden, at least, supports using clemency powers for some of these ends — saying in his criminal justice reform plan that he’d use his clemency powers “to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes.”

But since taking office, Biden hasn’t made any public moves in this area — although his staff is reportedly working on it behind the scenes.

Biden could be waiting for his attorney general nominee to get Senate approval. Or he could be concerned about the political risks: If an inmate he releases goes on to commit a crime, it could fuel a backlash. (The White House didn’t respond to a request for comment.)

Advocates want Biden to act quickly. They point to epidemics of Covid-19 in jails and prisons, which could be eased if there were fewer people in those settings to spread the coronavirus. And they argue that acting too slowly would repeat the mistakes of Biden’s predecessors, who, if they moved on clemency at all, did so too late during their terms to do the long, hard work of broader reforms.

Clemency wouldn’t address mass incarceration or the drug war all on its own — especially since it’s only relevant for federal inmates, and the vast majority of people incarcerated are held at the local or state level.

But clemency reform could help. And while the White House works out what it’ll do on the issue, thousands of people who could get a reprieve — some of whom are in prison due to laws Biden led the charge on — are waiting to hear back.

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