WASHINGTON, DC – Speaking in a recent panel, Premal Dharia, who serves as Executive Director of the Institute to End Mass Incarceration and a board member of the Law and Justice Journalism project, raised the issue of the presidential pardon power and its use in an equitable fashion.
Rachel Barkow, a law professor at the law school of New York University, noted that the pardon exists to correct extenuating injustice in the court system, stating that “no system is perfect and you want to have a fail safe in the executive to correct.”
Since it is difficult for people who suffered from injustices or systemic bias to clear their record, clemency is all the more imperative, they claimed.
Margaret Love, a former US Pardon Attorney, notes an attitudinal shift toward the pardon over time, stating on the panel, “The presidents have sort of abandoned this not terribly useful, not fit for purpose system of administering their power and just sort of gone on their own and done whatever they wanted.”
Love added the Clinton administration took pardons “off the rails,” setting the stage for subsequent presidents to pardon unjustly, suggesting the pardon was never supposed to be the critical legal tool it has become, having usurped many responsibilities that ought to remain with the law.
“I had a feeling when I was pardon attorney… that really the agenda was the justice departments and not the presidents. And I think that’s where justice really fell down,” Love said, charging the dysfunction of the justice system and the pardon process begs for change.
Turning the conversation to President Joe Biden’s pardons, Barkow said “he’s been so stingy,” noting even for law abiding citizens who were released from home confinement on a temporary emergency measure, Biden refused to provide pardons for permanent relief.
Biden’s pardon of his own son raises questions about his priorities, according to Barkow, who implored Biden to “pause and ask yourself, how many other parents in America are asking themselves that same thing where their child has … the positive recommendation that is so hard to get from the Department of Justice, and you’re still not granting it. “
“I just think that’s the kind of hypocrisy that goes down in somebody’s legacy as a failure,” Barkow said.
“To be fair to President Biden, there is certainly a case to be made that Hunter Biden got … prosecuted for crimes in Delaware that most people don’t get prosecuted for,” Jeffrey Toobin, a legal analyst at CNN, added.
Toobin qualifies that, despite Hunter’s convictions and somewhat unjust treatment, he was no more subject to injustice than the average person interacting with the Justice Department.
Toobin calls the pardon a “terrible error in judgment” from Biden, contributing to increasing rhetoric against his campaign’s sources of inequity.
Barkow agrees, stating that “it’s not like he can’t pick up the phone and say, get me a whole bunch of other people who committed crimes in the throes of addiction and let’s just bring ’em all out together and make a statement about how we view addiction in America or something.”
“We are kind of at a watershed moment here where we have an opportunity to think about what this power does,” Love said.
Barkow outlines death row prisoners as a necessary target for Biden’s pardons in the face of the incoming Trump administration, which seeks to “clear” death row under Project 2025’s agenda.
Toobin discusses the potential of the pardon to deal with mass incarceration, particularly noting ideological acceptance of it within the American populace as an obstacle.
Biden’s lame duck status could be an effective opportunity for him to showcase his true views on clemency, with no more voters to appease, Barkow commented. However, she argues that a greater institutional fix is still necessary to make sure people in need of relief are able to attain it efficiently.
“No matter what a legislature does, it’ll never be perfect. You’ll always want this mechanism and you’ll always want it … in an executive leader who can do it in a uniform way across the country,” Barkow said.
Love, still noting the pardon power should trail behind judicial reform and justice, agreed, insisting, “The system is no longer fit for purpose in my view. I hope we can have a conversation … in this country.”
