Opinion: What will Biden’s lame-duck legacy be?

One of the benefits of President Biden’s decision to end his reelection campaign is that he no longer needs to worry about the electoral consequences of his presidential decisions. This fact should free him to use his executive power to accomplish things he might have been reluctant to do lest he lose votes.

One of the things he should do to take advantage of what the Daily Beast once called “The Liberation of the Lame Duck” is ramp up his use of clemency power and focus it on hard cases and unpopular causes. He should use that power to display his commitment to tempering justice with mercy.

So far Biden’s clemency record is mixed. He has issued a couple of sweeping mass pardons and commutations, but has not done enough in individual cases.

His mass pardons and commutations have helped many people convicted of marijuana possession under federal law, including about 6,500 people and thousands more in the District of Columbia. In December 2023 he also commuted the sentences of 11 people who were “serving extreme sentences for drug offenses. All of them would have been eligible to receive significantly lower sentences if they were charged with the same offense today.”

Last month, Biden pardoned en masse veterans convicted and forced out of the military under its ban on gay sex. As he said at the time, “I am righting an historic wrong by using my clemency authority to pardon many former service members who were convicted simply for being themselves,”

These uses of clemency are significant. But in each of them Biden was riding a wave of popular sentiment that has turned against draconian sentences for drug offenses and against punishing people because of their gender identity and sexual identity. In his remaining time in office, the president should up his game and grant clemency to people whose offenses were more serious  and where mercy would not be as popular.

Thus, before he leaves office, he should use his power to empty the federal death row .

But before looking more closely at how Biden has used his clemency power, let’s look at the history of the president’s power to grant pardons and reprieves.

As the White House Historical Association notes , “The origins of the pardon power in the United States Constitution can be found in the English history, known previously as the ‘prerogative of mercy.’ It first appeared during the reign of king Ine of Wessex in the 7th century. Although abuses of the pardon power increased over time … the pardon power persisted through the American colonial period.”

The Framers of the Constitution did not devote much energy to the question of whether the government of the United States should include that power. Instead, they focused on where that power should be lodged and who should have the authority to exercise it.

Some of the delegates to the Constitutional Convention wanted to divide the clemency power between the executive and legislative branches, allowing the president to grant pardons and reprieves with the consent of the Senate. But this view did not prevail.

Others thought the pardon power should be lodged in the judiciary, not in the executive branch. But, in the end, the Constitutional Convention separated the judicial function from the pardon power.

Political scientist Jeffrey Crouch says that the convention accepted the view of the famous English jurist William Blackstone, that “the power of judging and pardoning should not be delegated to the same person or entity.”

Still other delegates warned that giving the president pardon power would endanger the Republic itself. As Virginia’s George Mason put it, the chief executive should not have the power of pardoning “because he may frequently pardon crimes which were advised by himself.”

“It may happen,” Mason argued, “at some future day, that he will establish a monarchy, and destroy the Republic. If he has the power of granting pardons before indictment or conviction may not stop inquiry and prevent detection?”

While acknowledging Mason’s worry, James Madison pointed out what he called “one security” to prevent such abuses. As Madison said , “If the president be connected, in any suspicious manner, with any person, and there’d be grounds to believe that he will shelter him, the House of Representatives can impeach him; They can remove him if found guilty.”

Madison’s view prevailed, and the power to grant pardons and reprieves was included in Article II, Section 2 of the Constitution, which defines the authority of the executive branch.

The Supreme Court, in its first ever consideration of the pardon power, called it “an act of grace, proceeding from the power entrusted with the execution of the laws.”

Soon after he became president, George Washington got busy exercising that grace. As The New York Times puts it in an article on the history of the pardon power, Washington “didn’t wait long to exercise the pardoning authority of the president prescribed by the Constitution, which historians said was one of the few aspects of monarchy rule in England that the framers adopted.”

In 1795, Washington “granted the first pardons to John Mitchell and Philip Weigel , who were convicted of treason for their roles in the Whiskey Rebellion,” an insurrection in Pennsylvania that occurred after the federal government placed a steep excise tax on distilled spirits. What Washington did was very controversial . It pitted him against people like Alexander Hamilton, who had different views about how to respond to the Whiskey Rebellion.

From Washington’s time to the present, the president’s use of the pardon power has often gotten him into trouble and has seldom been an electoral advantage. That is why we often see a sudden burst of pardons and commutations in the last several months of a president’s term.

Former President Trump offers one recent example of that phenomenon. He pardoned 74 people and commuted the sentences of 70 others on his last day in office.

Now let’s look at how President Biden has used the clemency power in individual cases where people committed offenses more serious than drug possession.

According to the Justice Department’s Office of the Pardon Attorney , Biden waited more than a year after he took office to grant his first individual pardons and commutations. In April 2022 he commuted the sentence of one person who had been convicted of conspiracy to import and distribute with intent to import cocaine. That same month he pardoned three other people, including a former Secret Service Agent who had been convicted soliciting money to commit fraud and obstruction of justice.

In the more than three years of his presidency, Biden has granted only 24 pardons to individuals who sought clemency through the established procedures rather than through a presidential proclamation of the kind he issued for marijuana possession. He has commuted the sentences of 129 other people who have petitioned for a reduction of their sentences.

By way of contrast, during his eight years in office President Brack Obama awarded presidential pardons to 212 people (and commuted the sentences of 1,715 others).

A July 13 report in Axios noted that so far “Biden has used his pardon power more sparingly than his modern predecessors on ordinary pardon cases.” He has approved only 1.6 percent of the more than 8,000 clemency petitions received since January 2021.

That is the lowest percentage of any president in the last 50 years. Only George W. Bush and Donald Trump come close, at 1.8 and 2.0 percent, respectively .

Now that he has bowed out of the race for another term, Biden has about six months to change that legacy. Doing so will not make him any more popular, but it will make this country a better, more forgiving place.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His views do not necessarily reflect those of Amherst College.

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