Preserve the Mercy of Pardon Power, Even If Presidents Misuse It

The end of a presidential administration always brings with it a last-minute pardon spree. In recent years the practice has led pundits and politicians to worry that the men occupying the Oval Office don’t have the ethics to handle such broad power.

Outgoing President Joe Biden ignited controversy this time around when he pardoned his son Hunter, even though Biden previously promised the American public that he wouldn’t interfere in the prosecution.

Under pressure from a coalition of criminal justice advocacy and religious groups, Biden also commuted the sentences of all but three of the 40 inmates on federal
death row, reducing their punishment to life in prison. In this case, the pardon power was a substitute (or autocratic workaround, Biden’s critics charged) for death penalty abolition legislation that Biden promised during the 2020 campaign but that he and Democratic leadership never had any real stomach for.

Controversy over the pardon power will certainly continue. Before Biden left office, he preemptively pardoned more of his family and several members of his administration under the justification that they were potential targets of the Trump administration, which has vowed revenge on its many political enemies. Meanwhile, Donald Trump pardoned roughly 1,500 of his supporters who were convicted for participating in the January 6 Capitol riot, including many who assaulted police.

In recent years, lawmakers in Congress have proposed constitutional amendments to stop presidents from pardoning themselves, family members, and cronies. But while it’s been amply demonstrated over the past two administrations that pardons can be used for self-serving ends—nepotism, buying loyalty, shielding unrepentant lackeys—they are still a crucial check on judicial and legislative excess.

The U.S. justice system heavily values finality in sentencing, and overturning sentences through courts or reform legislation, even when everyone agrees there’s been a mistake, can take years, even decades. A grant of clemency is instantaneous and unchallengeable.

Trump’s last-minute pardon spree during his first term included commuting the sentence of Chris Young. Young was sentenced to life in prison for his role in a drug trafficking ring. After he refused a plea deal and exercised his right to trial, prosecutors used a federal “three strikes” law to enhance his sentence to life. None of his co-defendants, including the alleged ringleader, received life.

Among the people granted clemency by Biden were more than a dozen nonviolent drug offenders who received significantly longer sentences than they would have if they had been convicted today. Their draconian sentences were the result of legislation championed by then-Sen. Joe Biden in the 1980s.

The pardon power is a rare instance where our government has enshrined the quality of mercy. That’s a virtue we should value and preserve in our leaders.

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