Legacy, no doubt, is on President Biden’s mind. Having given up on a second term, he must be thinking about how history will judge his four years as president. One area he should think hard about is his paltry record on clemencycasinoin, which plays a part in shaping every president’s legacy. Even with a little more than three months left in office, it is not too late for Mr. Biden to create a record he can point to with pride.
Clemency is the unilateral constitutional power granted to the president to pardon someone convicted of a federal crime or to commute a sentence. It is a powerful tool but one presidents tend not to think about until it is nearly too late.
End-of-term clemency chaos has become an unfortunate presidential tradition, as presidents scramble after ignoring this crucial power for most of their time in office. That is how we ended up with Bill Clinton unloading 140 pardons on his last day in office, including one to the wholly undeserving Marc Rich, a fugitive financier; George W. Bush wrecking his relationship with Dick Cheney by refusing at the last minute to give a full pardon to Scooter Libby, Mr. Cheney’s chief of staff, for obstructing a federal investigation; and Donald Trump issuing pardons to undeserving cronies and celebrities.
Mr. Biden has granted 25 pardons and commuted the sentences of 131 other people, according to the most recent Justice Department data. That is a mere 1.4 percent of the petitions he has received, based on our analysis. No modern U.S. president, going back to Richard Nixon, has had a rate so low; though of course, Mr. Biden is still in office.
In addition, he has granted pardons by proclamation to people convicted of the possession and “simple use” of marijuana on federal lands and in the District of Columbia, and to about 2,000 veterans who were convicted of engaging in gay sex under a military code that outlawed the behavior for more than 60 years. (Pardons by proclamation to a class of people are not included in Justice Department data.)
Clemency is more important than ever in an era of grossly excessive punishments and mass incarceration. Timidity is not a path to legacy, and the accumulated harms of presidents’ ignoring for years the power to issue clemency can be seen in the over 8,000 petitions that are pending, many of them more than five years old.
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