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As 2022 came to a close, President Joe Biden issued pardons to six people, leading to a collective shrug from experts and the media. The country’s leading experts on pardons have called out the president for his “cowardice” in granting mercy to only a handful of the over 130,000 federal prisoners. It is time for Biden to answer his critics by making a real dent in the country’s swollen prison population and foreshadowing the types of hard choices it will take to end mass incarceration.
He can do this by issuing clemency to thousands of nonviolent federal prisoners and including within that group some of the people convicted in the attack on the Capitol on Jan. 6, 2021.
By commuting the sentences of some of the nonviolent Jan. 6 rioters, Biden would push his primary critic, Donald Trump, into a corner.
As many reflect on the atrocity that unfolded in Washington two years ago today and the way it struck at the core of our democracy, that may be a preposterous thought. To be very clear, this is not to say that the people who were trying to stop the lawful transfer of presidential power do not deserve to be punished. Like many of the others who would receive clemency, they do.
But one of the challenges of reducing prison populations will always be that many people in the U.S. want to see lots of people locked up. We just differ about which people. To substantially reduce our incarcerated population (people in prison and jail), which totals almost 2 million and is among the highest in the world, the country needs to accept that the end of mass incarceration would mean less punishment, even for people who (we think) deserve it and even for those who commit serious crimes.
Although there has been some progress — like nominating former public defenders to the federal bench, reducing disparities between sentences for convictions involving powder and crack cocaine and announcing that he would pardon people convicted of simple cannabis possession under federal or Washington, D.C., laws — it is fair to say that Biden has, so far, been a disappointment on criminal justice reform. The federally incarcerated population has grown in the past two years, and there are few signs that this trend will reverse any time soon. Yet there are time and opportunity for bold leadership, something that has long been missing on this issue at the federal level.
Drawing on historical precedent, Biden should commute the sentences to time already served of 10% of the federal prison population — over 10,000 federal prisoners — releasing a substantial proportion of the approximately 70,000 people in federal prison for nonviolent drug and immigration crimes.
Including some of the hundreds of people prosecuted for and convicted of participating in the Jan. 6 riot who are not accused of assaulting or interfering with police would demonstrate the seriousness with which he is approaching the problem of mass incarceration.
The president is uniquely positioned to take this bold action for several reasons. First, as a senator, he was one of the “tough-on-crime” Democrats who joined Republicans to enact laws, like the 1994 crime bill, that fueled mass incarceration. By taking a big step in the other direction, he would signal to the country that it is time to reverse course.
Second, while Democrats have lost full control of Congress, Biden can act unilaterally to reduce the federal prison population. The power to pardon or commute federal sentences is a prerogative of the executive branch. And there is ample historical precedent. For example, Presidents Calvin Coolidge and Herbert Hoover both granted clemency to over 1,000 people during their terms when federal prisons held a little over 10,000 prisoners.
Now that the federal prison population has ballooned, presidential action on a similar scale would mean the release of more than 13,000 people.
One of the challenges of reducing prison populations will always be that many people in the U.S. want to see lots of people locked up. We just differ about which people.
Third, according to a 2022 federal justice statistics report, federal prisoners are almost exclusively convicted of nonviolent offenses. Almost half are serving time for drug offenses, with 5% more in prison for immigration crimes. That is 70,000 people who could be let out of prison with the stroke of a pen, before you even get to harder but still arguable cases, like those of the 25,000 people serving lengthy sentences for weapons possession. The nation needs to have a difficult conversation about sentence lengths for violent crimes, but that conversation is not required for action at the federal level, where few people are prosecuted for violence.
Fourth, the Jan. 6 prosecutions give Biden a unique opportunity to show leadership, by offering mercy to folks whom he (and his supporters) would most likely like to see locked up. After all, Biden was the nominee whose lawful election the rioters tried to overturn. The federal officials working tirelessly on the Jan. 6 prosecutions would strongly resist any leniency, and with good reason. Their understandable frustration with any possible intervention by the president would be shared by many people in the U.S. But real progress on this issue will require difficult decisions, something Biden can demonstrate by going against his own preferences and those of his supporters.
Finally, by commuting the sentences of some of the nonviolent Jan. 6 rioters, Biden would push his primary critic, Donald Trump, into a corner. Trump vowed to pardon all of the Jan. 6 defendants if he is re-elected. By commuting sentences for at least some of those who did not interfere with police, Biden would force Trump (who claims to “back the blue”) to either endorse his action or narrow his talking point to pushing for pardons for rioters who assaulted police.
Releasing thousands of federal prisoners is the kind of bold action that could jump-start an era of mass decarceration. It is not just the raw numbers: over 10,000 human beings freed from confinement. Biden could signal the need to return to the way we used to think about mercy — as applying even to those who deserve punishment — not just in terms of pardons but throughout all of criminal justice.
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