WASHINGTON – First came President Joe Biden’s controversial pardon this month of his son, Hunter Biden.
It was followed Thursday by the largest single-day act of clemency in modern history: commuting the sentences of nearly 1,500 people who were placed on home confinement during the COVID-19 pandemic and pardoning 39 others convicted of nonviolent crimes.
The lame-duck, 82-year-old Democrat isn’t done yet.
Biden promised to take “more steps in the weeks ahead” as he announced the sweeping reprieves for nonviolent, mostly drug-related, offenders he said have successfully reintegrated into their communities and deserved a “second chance.”
Less than six weeks before he leaves the White House, Biden faces a host of political and legal considerations as he decides how he will use his presidential clemency power next.
More:President Joe Biden commutes nearly 1,500 sentences and pardons 39 people
Biden and his senior aides are considering potential preemptive pardons for individuals they fear President-elect Donald Trump might target for criminal investigations. Rep. James Clyburn, D-S.C., a close Biden ally, suggested this week that Biden pardon Trump of his federal charges to “clean the slate.”
Meanwhile, criminal justice advocates, although pleased by Biden’s moves Thursday, want him to sign off on all 10,000 pending clemency petitions. Other activists and progressive Democrats are urging Biden to commute the sentences of 40 men on federal death row, fearing the return of Trump will restart federal executions, which had been paused under the Biden administration.
“With 39 days remaining in his presidency, President Biden has the power to continue to use his clemency authority to change and save the lives of many, many other Americans behind the wall,” said Rep. Ayanna Pressley, D-Mass. “It is the right thing to do, it is the moral thing to do, and it is a matter of legacy.”
More:Who did President Biden pardon? See the full list of names released Thursday
With the latest clemency moves, the White House said Biden has now issued more sentence commutations than any of his predecessors at the same point in their terms. That’s in addition to pardons targeting categories of offenses, including pardons for simple marijuana possession in 2022, and a proclamation this year pardoning veterans previously convicted under a military law that banned gay sex.
Yet Biden’s pace of individual pardons ‒ which absolves an individual of a criminal offense entirely ‒ has been the slowest since at least President William McKinley in 1900, according to Justice Department records. Biden has pardoned 65 people so far, leaving him behind another one-term president, George H. W. Bush, who pardoned 74 people. But pardons sometimes happen at the end of an administration because they can be controversial, and Biden has until Jan. 20 to make his decisions.
More:President Biden considers preemptive pardons amid concerns over Trump revenge tour
Jimmy Carter, another one-term president, had the most in the past 50 years, with 534 pardons – before counting the open-ended pardon he provided people who dodged the Vietnam War draft from 1964 to 1973. Franklin Roosevelt pardoned the most since 1900 with 2,819 during his four terms.
The 1,499 individuals whose sentences Biden commuted involve people in home confinement through the 2020 CARES Act, which authorized the federal Bureau of Prisons to move medically vulnerable inmates incarcerated for nonviolent offenses from prisons to house arrest.
Biden said that many of those receiving commuted sentences “would receive lower sentences if charged under today’s laws, policies and practices” and that they have “successfully reintegrated into their families and communities and have shown that they deserve a second chance.”
He said the 39 people he is pardoning have shown “commitment to making their communities stronger and safer.” None are household names, and most were convicted of nonviolent drug-related offenses.
Clyburn, who had previously commended Biden for pardoning 11 people convicted of simple marijuana possession, said his action tackled injustice.
“Many people of color and moderate means have been disproportionately burdened by systemic injustices and clemency is a potent tool in the President’s toolbox to remedy some faults in our legal system,” Clyburn said in a statement.
Margaret Huang, president of the Southern Poverty Law Center, said Biden’s action provided justice for people in southern states who are disproportionately and harshly punished due to discriminatory law enforcement.
“The failings of the criminal legal system have resulted in the mass incarceration of people of color throughout the South, justified by fabricated narratives about the benefits of institutionalization to public safety,” Huang said.
Some Republicans had pushed legislation that sought to return people in home confinement during the pandemic back to prison. But GOP criticism from Biden’s actions Thursday didn’t appear widespread.
“I’m not surprised at this point anymore,” Rep. Anna Paulina Luna, R-Fla., told Fox News. “I think I’m still trying to get over the Hunter Biden thing after he promised America he wouldn’t do it.”
In the weeks since Trump’s election victory last month, criminal justice activists have ramped up pressure on Biden to commute sentences of federal inmates on death row ‒ and follow through on a Biden 2020 campaign promise to end the federal death penalty. They renewed their calls after Thursday’s announcement.
During Trump’s first term, his administration oversaw 13 executions in its final six months, becoming the first presidential administration to carry out the federal death penalty in 17 years. Trump has vowed to resume federal executions and even expand it to drug dealers.
More:Pressure is on to get Biden to fulfill a campaign promise before he leaves office
A collection of 134 groups advocating for civil liberties, human rights and social justice urged Biden on Monday to commute the sentences of all prisoners on death row. Pressley and other House Democrats held a news conference calling for the same Wednesday.
“While today’s announcement is wonderful, there is more to do in the final weeks before President Biden leaves office,” said Cynthia Roseberry, director of policy and government affairs at the American Civil Liberties Union’s justice division. “We strongly urge President Biden to use his power to address this country’s failed death penalty by commuting death row sentences.”
Democrats in the Congressional Black Caucus and civil rights leaders have also pushed Biden to pardon former Baltimore City state attorney Marilyn Mosby, who was convicted earlier this year on perjury and mortgage fraud charges related to a home loan application. Her advocates say Mosby, who maintains her innocence, was a political target of the Trump administration.
White House press secretary Karine Jean-Pierre was noncommittal when asked Thursday whether Biden will commute sentences for individuals on federal death row. She said Biden and his team will continue to review clemency petitions “in normal course.”
She added that Biden wants to “further the criminal justice reforms in a manner that advances equity and justice, promotes public safety, supports rehab and reentry, and provides meaningful second chances.”
Pressed about the thousands of others seeking clemency, Jean-Pierre said Biden has taken “many actions” in addition to the latest clemency announcements.
A far more delicate political calculation for Biden will be whether to offer blanket pardons to shield individuals who Trump has threatened.
It would likely invite an instant backlash, particularly from Republicans, while Biden also faces criticism for his broadly worded pardon for Hunter Biden, which was made not only to reprieve his son from existing gun and tax felonies but to shield him from potential future charges by Trump’s Justice Department.
Some Democratic lawmakers, led by U.S. Sen. Ed Markey of Massachusetts, are publicly advocating for the preemptive pardons ‒ alarmed by Trump’s repeated past threats to prosecute his political enemies and his recent pick of longtime ally Kash Patel as director of the Federal Bureau of Investigation to replace Christopher Wray, who resigned Wednesday.
Those who could be on a preemptive pardon list include retired Gen. Mark Milley, who Trump has called a traitor worthy of the death penalty; former Republican Rep. Liz Cheney, who Trump has said should “go to jail” for her role on the House committee that investigated the Jan. 6, 2021, attack on the Capitol; Dr. Anthony Fauci, a frequent target of Republican lawmakers over his work during the U.S. response to the COVID-19 pandemic; and Sen. Adam Schiff of California, who Trump has referred to as “the enemy within” for his leading role while serving in the House of Representatives during Trump’s first impeachment.
More:Rep. Bennie Thompson says he’d take a Biden pardon after Trump’s Jan. 6 jail threat
In an interview over the weekend on NBC’s “Meet the Press,” Trump said some members of the House committee that investigated Trump’s actions on Jan. 6, 2021, should “go to jail.”
Rep. Bennie Thompson, former chair of the committee, said Thursday he would accept a preemptive pardon from Biden out of fear that Trump might target him with a criminal investigation.
Yet the possibility of preemptively pardoning people who have not been charged of any crimes raises several legal concerns that could ultimately sway Biden not to take action, according to legal experts. Accepting a pardon carries with it the suggestion of accepting guilt. And some Democrats worry Biden would set a new precedent for pardons, opening the door for Trump to take similar actions.
Jean-Pierre wouldn’t rule out blanket pardons when asked whether it’s a possibility.
“He’s going to have conversations with his team; he’s going to review clemency petitions,” she told reporters on Thursday. “He’s going to review options on the table. And so that’s where I’m going to leave it.”
Reach Joey Garrison on X @joeygarrison.
