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Mass Clemency

In the age of mass incarceration, the president can and should lead the nation by freeing from prison as many people as possible.

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The ongoing debate over whether to send back to federal prison thousands of people transferred to home confinement during the COVID-19 pandemic is just one example that has brought to the forefront the issue of presidential clemency powers. Advocates on the right and left are calling on President Biden to commute the sentences of people on home confinement to prevent them from being returned to prison. And so far, the president appears to be open to at least a limited form of clemency.

But this and other debates that raise the prospect of clemency also touches on a broader question: When and how should presidents use the power of clemency? Should it be restricted to case-by-case considerations, based on a person’s individual merits? Or should clemency also be used more broadly and in a categorical manner, where the White House identifies a systemic injustice and uses the power of clemency to correct that injustice for a class of people? Again, in the example of COVID home confinement, advocates are seeking the latter solution, placing it in the context of the broader struggle against mass incarceration and a step towards healing a nation from a crisis that has upended tens of millions of lives.

The push for taking a categorical approach to a president’s clemency powers is a bold one, but it is clearly within the confines of a president’s legal authority and it has historical precedence. In fact, for the first 190 years of our nation’s history, presidents used their clemency powers broadly, applying it to classes of people in need of help. It wasn’t until the rise of the so-called tough-on-crime era that presidents began to shy away from broad use of their clemency authority.

The United States Constitution provides presidents with broad powers to grant clemency. Article II, Section 2, Clause 1 of the Constitution grants the President the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” This authority has roots in English law, which was adopted into colonial charters. The Virginia Charter of 1609, for example, granted the governor the “full and absolute Power and Authority to correct, punish, pardon, govern, and rule” all people subject to the governor’s geographic jurisdiction. During the Constitutional Convention of 1787, Alexander Hamilton and others won inclusion of a pardoning power in the newly drafted constitution.

The Supreme Court has recognized that the president’s clemency power is broad, with just a few exceptions: the president’s power applies only to federal crimes; the president cannot pardon impeachment convictions; and the pardon cannot be issued to cover crimes prior to commission. In the 1927 case of Biddle v. Perovich, the Supreme Court elaborated on the president’s power:

“A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”

Presidents have several forms of clemency powers, including reprieves, which temporarily postpones punishment; pardons, which relieve a person of all past or future punishments and can be done before or following a conviction; and commutations, which adjust a person’s punishment, normally reducing a sentence, but is also used to replace a death sentence with a term of imprisonment.

While historically it has been more common for presidents to use these powers on a case-by-case basis, driven by individual acts of mercy or because of political favoritism, there is deeply rooted legal precedent for presidents to use their authority to grant clemency to large classes of people. Presidents have deployed this authority to advance the public welfare, whether following a war or in response to unjust punishments, or simply to help heal a nation torn by crisis.

When the republic was still young, presidential pardon powers were widely used for entire classes or communities, usually issued by a presidential proclamation. In fact, broad clemency has been issued by presidents George Washington, John Adams, James Madison, Abraham Lincoln, Theodore and Franklin Delano Roosevelt, Harry Truman, Lyndon B. Johnson, Gerald Ford, and Jimmy Carter.

In the early years of the republic, the nation’s first president illustrated, albeit modestly, how the clemency power can be used to respond to a single event affecting people facing shared circumstances. President George Washington pardoned the participants in the 1794 Whiskey Rebellion, hoping that it would defuse tensions in the new country. In 1791, Congress had enacted a tax to help pay the national debt, and a multistate armed rebellion formed in response. Encouraged by Alexander Hamilton to take a tough stance, the federal government charged the leaders of the rebellion with treason, but President Washington, beginning in 1795 and continuing to 1797, issued clemency for people sentenced for treason.

This practice of issuing clemency for a class of people continued throughout those early years. In 1800, President John Adams pardoned Pennsylvanians who had engaged in “treasonable insurrection against the just authority of the United States.” In 1807, President Thomas Jefferson granted full pardons “to all deserters from the Army of the United States who would surrender themselves.” President James Madison offered a full pardon to deserters of the War of 1812 under the condition that they surrender within four months. In 1830, President Andrew Jackson issued an order that extended “a free and full pardon” to deserters, subject to certain provisions.

During and after the Civil War, Presidents Abraham Lincoln and Andrew Johnson issued several presidential pardon proclamations. Lincoln issued pardons for Civil War-related offenses, mostly for conspiracy and treason, while President Johnson, under much controversy, issued pardons to all Confederate soldiers.

This practice continued into the 20th century. In 1902, President Theodore Roosevelt pardoned everyone involved in the Philippines insurrection. President Roosevelt, on December 23, 1933, pardoned people convicted under the Espionage Act and Selective Service Act following World War I. President Harry Truman, on December 24, 1947, granted pardons to 1,523 people in prison for refusing to cooperate with the draft in World War II.

More recently, President Gerald Ford issued a conditional pardon on September 16, 1974 to thousands of military members who deserted during the Vietnam War, and pardoned without conditions people who evaded the Vietnam War draft. Between 28,000 and 50,000 people were estimated eligible for President Ford’s pardon, who explained:

“The primary purpose of this program is the reconciliation of all our people and the restoration of the essential unity of Americans within which honest differences of opinion do not descend to angry discord and mutual problems are not polarized by excessive passion.”

Three years later, on his first full day in office on January 21, 1977, President Carter granted a pardon to most people who evaded the draft, and without conditions. President Carter wanted to reconcile the deep divisions that still existed in the aftermath of the Vietnam War.

But beginning in the 1980s, the politics of clemency changed dramatically, as the “tough-on-crime” narrative took hold in presidential politics. While Barry Goldwater and Richard Nixon set the stage, it was under Presidents Ronald Reagan, George H. W. Bush, and Bill Clinton that so-called law-and-order became the prevailing theme, changing the way both political parties approached this issue. They ran and governed on an agenda that included pursuing a War on Drugs (Reagan), pushing Willie Horton-style fear-mongering (Bush), and advancing the largest crime bill in U.S. history that would lead to further growth in incarceration, prisons, and the death penalty (Clinton).

Beginning in the 1980s, the politics of clemency changed dramatically, as the “tough-on-crime” narrative took hold in presidential politics.

Clemency took a big hit during the rise of mass incarceration and these tough-on-crime politics. On average, over the past 124 years, each presidential term resulted in at 186 commutations, but some of the stingiest shows of clemency since 1900 all came from recent presidents. President George H. W. Bush commuted only three sentences, while his son, President George W. Bush, commuted 11. President Clinton commuted only 61 sentences and issued an end-of-term pardon to financier Marc Rich, triggering criticisms of corruption. Most recently, President Trump granted only 94 commutations, and many of them drew intense scrutiny due to the high-profile status and political and personal connections of the people who received clemency.

Compare that to President Woodrow Wilson, who commuted 1,366 sentences over two terms, and President Calvin Coolidge, who commuted 773 sentences over six years.

The sole exception to this recent retreat from clemency came from President Barack Obama’s record-breaking 1,715 commutations. President Obama did face criticism for waiting too long before using his clemency powers, with many issued in the last few weeks of his two-term presidency. But he made 1,928 grants of clemency during his presidency, of which the vast majority were commutations; in all, he handed out more commutations than any other president had ever granted.

As the above examples make clear, past presidents viewed clemency as a tool to fix structural injustices. They recognized that the president has responsibility to use categorical clemency to bring the nation together, as in the examples of presidents Ford and Carter, and also to correct unfair treatment based on unjust laws, such as presidents George Washington and Franklin D. Roosevelt. And as noted above, the Supreme Court has recognized that clemency is a tool to advance the public welfare.

Similarly, today the nation continues to suffer from a mass incarceration crisis that has devastated communities and has roots in our nation’s history of slavery and white supremacy. The United States has the highest reported incarceration rate in the world, with close to five percent of the world’s population yet more than 20 percent of the world’s people in prison. This crisis impacts tens of millions of Americans, as nearly half of all adults have an immediate family member who is or has been incarcerated. This crisis has targeted communities of color in particular, as a Black boy born today has a one-in-three chance of ending up incarcerated; and for Black men in their 30s, one in every 10 is in prison or jail on any given day, according to The Sentencing Project. The vast growth of the criminal legal system has created a large population of people who face upwards of 45,000 federal, state, and local restrictions, creating a class of tens of millions of Americans who face legalized discrimination. Many of these same Americans are excluded from voting because of a felony record, and in seven states — Alabama, Florida, Kentucky, Mississippi, Tennessee, Virginia, and Wyoming — more than one in seven Black adults are disenfranchised.

Granted, the federal system includes only approximately 10 percent of the nation’s incarcerated population. But it is the single largest incarcerator in the nation. And following in the steps of past presidents, President Biden can lead by example, embracing categorical clemency as a tool to mitigate the system’s structural injustices. In the same manner that past presidents sought to use the power of categorical clemency to move forward as a nation following a conflict, so too should President Biden and future presidents use categorical clemency to move the nation forward to exit our mass incarceration era. More importantly, and perhaps symbolically, as the states carry the bulk of mass incarceration, the president’s leadership on mass clemency at the federal level would give governors, both Democrat and Republican alike, a blueprint to follow to correct past injustices in their own states.

The president’s leadership on mass clemency at the federal level would give governors, both Democrat and Republican alike, a blueprint to follow to correct past injustices in their own states.

The president can act by issuing categorical clemency through a proclamation to a class of people based on two categories of eligibility: Personal characteristics or membership in a certain group, or shared circumstances. Such a proclamation should contain a presumption that all people who fit the criteria announced by the president will have their sentences commuted unless the Department of Justice can prove an articulable and current threat of violent harm.

Shifting the burden of proof to the government to prove why a person should not be released is the opposite of the current process, which places the burden on the individual applying for the president’s mercy. But such a shift would allow presidents to exercise their full constitutional clemency authority while also looking out for public safety concerns — by making the government meet the burden of proving that there is a specific threat to safety that should prevent an individual from being released.

Meanwhile, a categorical approach based on personal characteristics recognizes that certain communities have faced the brunt of the mass incarceration crisis. For example, studies have shown that as people age, their likelihood to once again come in contact with the criminal legal system drops significantly. Yet people in our nation’s prisons are getting older. As of 2018, there were upwards of 164,000 people aged 55 and older incarcerated in the United States, a 280 percent spike over the past 20 years. A categorical approach to clemency would decide on an age cut-off or some combination of age and years served to create a category of people who should benefit from clemency. Other examples could include survivors of gender-based violence or primary caregivers. Governors, for their part, can issue categorical clemency to young people convicted as adults. A categorical approach would identify such categories of people and create a presumption of clemency.

A categorical approach based on shared circumstance can fix systemic injustices caused by unjust laws. For example, President Biden has stated on numerous occasions that he opposes mandatory minimum laws. Yet tens of thousands of people today are incarcerated in federal prison under mandatory minimum laws. While only Congress can repeal these laws, President Biden can identify categories of mandatory minimum laws that will create a presumption of clemency. For example, he can focus on commuting the sentences of people serving mandatory minimum sentences for drugs. Other examples of such a categorical approach can include a focus on people incarcerated under laws that have since changed, people incarcerated for administrative violations of probation or parole supervision, or people on death row.

Issuing categorical clemency is legally permissible, supported by historical precedent, and supported by the public. A 2020 ACLU-commissioned Bully Pulpit Interactive poll found that a majority of voters — 62 percent — believe that reducing the prison population would strengthen communities by reuniting families and saving taxpayer dollars that can be reinvested into the community. Eighty percent of voters — 86 percent of Democrats, 81 percent of Independents, and 73 percent of Republicans — signaled support for achieving those population reductions by the executive branch issuing broad categorical commutations to release people. And an internal poll recently commissioned by the ACLU found that by a margin of 63 to 33, voters nationally favor granting clemency to people serving the remainder of their sentences at home because they were transferred from prison during COVID-19.

Only a bold and transformational approach to clemency can tackle the enormity of our nation’s mass incarceration crisis. Decades of punitive policies created the crisis, particularly in Black and Brown communities. Categorical clemency is an opportunity to fix these injustices and to free people who should not be in prison today. Correcting these past injustices is a critical step to healing our nation and to moving forward on racial justice. Now it’s time for the president, and those who look to his leadership, to meet this moment.

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