Biden: No pardons, but group release

Turns out, home confinement is the new commutation

So far this year, President Joe Biden has issued one pardon, for two turkeys, Peanut Butter and Jelly. He has issued no pardons or commutations for human beings.

(Note: A presidential commutation reduces the sentence of convicted federal offenders, while pardons generally wipe clean a federal offenders’ criminal record. For more details, look here.)

The Biden Department of Justice web site, however, now lists a different type of clemency: extending COVID-related home confinement for nonviolent drug offenders with between 18 and 48 months left in their sentences after COVID. It’s sort of like a group pardon/commutation where the president doesn’t have to sign for each beneficiary. Light fingerprint.

Under the CARES Act passed in March 2020, former President Donald Trump and then Biden released thousands of prisoners to home confinement to alleviate COVID cases in federal prisons. According to the Department of Justice, the Bureau of Prisons now has released 7,788 inmates under home confinement.

In January, the Trump DOJ ruled that these inmates must be returned to prison after the COVID state of emergency ends. But on Dec. 21, the Biden Office of Legal Counsel released an opinion that the Bureau of Prisons could use discretion to allow released individuals to stay at home after the emergency ends.

This is a good thing, former Department of Justice Pardon Attorney Margaret C. Love told me. There are a number of nonviolent offenders facing decades in prison. “These individuals have thrived since their release,” Love noted in an email supporting the Biden DOJ approach. “They have found housing, assumed gainful employment, joined churches and community groups, and re-established familial relationships. It would have been both cruel and unnecessary to wrench freedom away after they have proved themselves worthy of it.”

Back to pardons

That doesn’t or shouldn’t let Biden off the hook — especially when it comes to exercise of the pardon, which generally is used in recognize ex-offenders who served their time and then chose to turn their lives around.

And commutations

During the Dec. 21 press briefing, Press Secretary Jen Psaki said POTUS intends to use his clemency power.

Q    And then one quick, unrelated.  We’re nearing the end of the year, and in the spirit of the holidays, presidents often will announce pardons and/or commutations.  Should we be anticipating anybody in 2022 — or 2021?  Sorry.

MS. PSAKI:  I don’t have anything to preview at this time.  I would just reiterate that the President has every intention of using his clemency power.  And there has been some reporting, which is accurate, out there about nonviolent — looking at nonviolent drug offenders, but I don’t have anything to update you on at this point in time.

Biden should do something about nonviolent drug offenders because he was a key force behind the Anti-Drug Abuse Act of 1988 which included over-the-top federal mandatory minimum sentences for drug trafficking and possession. Biden later regretted that the bill had racially disparate sentences for crack versus powder cocaine. Biden also was a driver behind the 1994 Violent Crime Control and Law Enforcement Act. The two measures clogged federal prisons for decades.

Former President Donald Trump and Congress peeled back mandatory minimums by enacting the First Step Act of 2018.

Biden, Trump, Obama…

To put perspective on Biden’s failure to issue a pardon or commutation this year, Trump issued no pardons during his first calendar year in office and one commutation for a former Iowa slaughterhouse executive, Sholom Rubashkin, who had been sentenced to 27 years for bank fraud and money laundering.

During his second year in office at the urging of Kim Kardashian, Trump commuted the sentence of Alice Marie Johnson, a great grandmother sentenced to life without parole for serious but nonviolent drug offenses.

Trump came to embrace the unencumbered power to grant mercy to deserving federal offenders, granting a pardon to former Las Vegas bank robber Jon Ponder, who turned his life around and launched Hope for Prisoners, during a Republican National Convention event conducted on the South Lawn, the White House claimed, because of COVID.

Unfortunately, Trump also issued pardons to cronies like Steve Bannon, Roger Stone and Paul Manafort.

Former President Barack Obama issued no pardons or commutations during his first year in office. Obama issued his first pardons in December 2010 and his first commutation ahead of Thanksgiving 2011 to Eugenia Marie Jennings, who had served close to a decade of a 22-year sentence for cocaine distribution.

To his credit, Obama warmed to the process and commuted the sentences of a number of nonviolent drug offenders, including Clarence Aaron who had been sentenced to life without parole for a first-time nonviolent drug offense.

Prior to Trump’s glut of pardons to acquaintances, former President Bill Clinton tarnished the reputation of the pardon power by issuing out-the-door pardons to such undeserving types as Marc Rich, a fugitive billionaire whose wife was a big donor.

Bottom line

Long-time readers know that I believe in tough sentences for repeat and violent offenders, but these CARES Act home confinements are limited to nonviolent drug offenders who are subject to supervision and consequences if they violate home confinement terms.

Having said that, I don’t like that this is another example of federal bureaucrats deciding that laws say what they want them to say and leaving Congress off the hook.

Debra J. Saunders is a fellow at the Discovery Institute's Chapman Center for Citizen Leadership. Contact her at dsaunders@discovery.org.

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