President Biden’s historic clemency announcement Thursday is welcome news. It’s a major step in the right direction and a recognition of the excessively punitive nature of our criminal justice system. But there are thousands of additional people who still deserve clemency. Encouragingly, the White House added that the president is continuing to review more clemency options.
The president commuted the sentences of some 1,500 people who were placed on home confinement during the Covid-19 pandemic and have been serving their sentences while reintegrating into their communities. He also pardoned 39 individuals who were convicted of nonviolent crimes.
The Cares Act of 2020 allowed medically vulnerable people to serve part of their sentences on home confinement to avoid the risks that the virus carries for so many people in federal prisons. Across the country, people in prison died at 3.4 times the rate of those who were not incarcerated. The success of this program is evidence that more people could be transferred from federal prison to home confinement without jeopardizing public safety.
The Constitution grants the president unilateral clemency power to pardon and commute sentences of people convicted of federal crimes. Under Article II, Section 2, the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
Biden campaigned on a pledge to “strengthen America’s commitment to justice and reform our criminal justice system.” One way for him to ensure that his justice policies have a lasting legacy is by more fully using the clemency power.
Starting on January 20, Donald Trump will have the power to reverse many of the current administration’s policies — he has already promised as much, vowing to reinstitute the federal death penalty. But he cannot reverse acts of clemency. That’s why we are urging Biden to issue additional commutations and pardons before leaving office for people serving unjust sentences. We are still hopeful that he will grant clemency to the more than 40 people on federal death row whose sentences can be commuted to life without parole and more than 6,000 serving racially disparate drug sentences.
Between 2013 and 2018, Black and Hispanic men made up about 75 percent of those in federal prison for drug offenses. The federal death penalty is also problematic, as it is unevenly applied based on differences of geography, race, and legal representation. Further, even though they are supposedly protected by Supreme Court rulings, people with severe intellectual disabilities and mental illness are still at risk of federal execution.
When it comes to ensuring a fair justice system, the Brennan Center believes the clemency power should be used more frequently as a vital mechanism of mercy. You can add your voice to this call here.
