Sunday Commentary: Biden Commuted a Record Number of People – Did He Go Far Enough?

In the aftermath of Joe Biden’s presidency, there will long be questions about Biden’s record on criminal justice reform—some of these things we will not be able to determine until we see them with the benefit of hindsight.

Of course, some of the immediate focus was put on the pardons of his son Hunter, and family members and close associates.  In a lot of ways, I agree with this criticism but, with that said, watching President Trump immediately move to remove security details from Dr. Anthony Fauci, who was the former Chief Medical Advisor to the President, suggests perhaps some legitimacy to the move despite the pardon taking some people into a proverbial rabbit hole.

Then there was President Trump’s move to pardon most of the January 6 insurgents—not just the people one could reasonable claim were victims of overzealous prosecution, but also the Oath Taker leader as well as people convicted of violent acts on Capitol Police.

This prompted, among others, the very conservative Fraternal Order of Police to issue a rebuke, complaining about the commutation of individuals convicted of “assaulting law enforcement officers.”

They said, “Crimes against law enforcement are not just attacks on individuals or public safety — they are attacks on society and undermine the rule of law. Allowing those convicted of these crimes to be released early diminishes accountability and devalues the sacrifices made by courageous law enforcement officers and their families.”

In a statement on Tuesday, the Fraternal Order of Police and the International Association of Chiefs of Police said they are “deeply discouraged” by the pardons and commutations.

In the bigger picture, in my view, commuting the sentence of Leonard Peltier—whose prosecution following a siege in the early 1970s and confrontation between federal agents and members of the American Indian Movement at the very least raised questions about prosecutorial and police misconduct, and some believe they convicted an innocent man based on political considerations.

“Over the years, Mr. Peltier has maintained his innocence, and concerns have been raised about the fairness of his trial and about his legal representation,” the Special Rapporteur said.

A 2022 report from the UN Working Group determined that Peltier’s detention constituted “arbitrary imprisonment.”

The Human Rights Council-appointed expert Albert Barume praised the decision, describing it as “an important gesture by the United States toward the country’s Indigenous Peoples.”

At the very least, Peltier, in failing health, at the age of 80, presents no threat to anyone and one might say the commutation which puts him into home confinement does not go far enough.

Many death penalty abolitionists, such as myself, would argue that President Biden did not go far enough with respect to ending the federal death penalty—indeed, President Trump immediately restored the federal death penalty upon taking his oath of office for the second time.

However, by commuting most of the death row federal residents, Biden will prevent a repeat of what took place in 2019-20 where Trump expedited the execution of many—some of which were fairly questionable executions.

However, by only commuting 37 of 40 people’s sentences to life, Biden continues to believe that the death penalty is at least sometimes warranted.

Biden also commuted the sentences of 1,500 individuals that were released from prison and placed on home confinement during the COVID-19 pandemic.  He followed that up with the commutation of 2000 people convicted of nonviolent drug offenses.

From my standpoint, these are probably the most consequential, undoing a grave wrong that stemmed from federal sentencing guidelines that have come to be seen as racially discriminatory—guidelines that Biden as senator was instrumental in establishing.

Then again, just as President Biden failed in his promise to end the federal death penalty, he also failed in efforts to fix the sentencing disparities as well as pass stronger protections for victims of police violence, and failed to address qualified immunity that allows individual police officers to often escape accountability for police misconduct.

Brian Tashman, Deputy Director of Vera Action, criminal justice reform and immigrant rights organization, largely parallels my thinking.

“In the last month of his administration, President Biden commuted the sentences of 1,500 individuals that were released from prison and placed on home confinement during the COVID-19 pandemic and also 37 individuals on federal death row,” Tashman told the Vanguard in an emailed statement this week.

“This practice of executive discretion is the most significant clemency action by any President in modern American history, and also a directive that actually rebuilds communities and keeps us safe. The positive effects of these decisions from the Biden administration are investments in justice, but also decisions that provide relief to our overwhelmed criminal legal system,” he added.

At the same time, while noting the 11^th hour use of clemency was widely positive, “there was much more the administration could have done to utilize clemency power to address additional excesses and injustices of the system.”

For example, “In the federal system alone, the Office of the Pardon Attorney reports several thousand current pending clemency applications, both for commutations and pardons. They are not people with privileged connections to power or likely to benefit from political or partisan favoritism. These are individuals who have followed the application process and painstakingly made the case for why their situation deserves a second chance, which is inherently the purpose of clemency.”

In the end, I was grateful that Biden commuted the sentence of Leonard Peltier, but I wonder how many others could have been sent home.

Moreover, while commuting the sentences of 37 death row individuals was a positive, as was commuting the sentences of 2000 non-violent drug offenders, Biden’s administration failed to advance any major criminal justice reform efforts—and while some of that was definitely due to the political environment of the last four years, Biden did not use his bully pulpit when he had the platform and the political capital to do so.

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