Pardons and Unmerited Grace

Today President Joe Biden commuted the sentences of roughly 1,500 Americans and issued pardons for 39 persons convicted of non-violent crimes. For the remainder of Biden’s term any use of the pardon power will be shadowed or seen through the prism of his pardon of his son, Hunter Biden. But I wanted to take this opportunity to say something broader about the pardon power. And I want to be clear that this isn’t an opinion that is downstream of or related to the Hunter Biden pardon. I’ve made similar arguments a number of times going back probably 20 years.

Put simply, we don’t have anywhere near enough pardons: both at the federal and the state level.

In fact, much of what passes for pardons or clemency today aren’t really pardons at all. They’re basically fake clemency. Set aside the controversial pardons of recent years. Most presidents at the end of their terms issue pardons to a range of meritorious individuals. They each come with a backstory of bad choices later redeemed by selfless altruism, service or other exemplary conduct. Or they simply turned around their life against the odds. But in almost every one of these cases the recipients have already done their time! They took responsibility; did their time; expressed remorse and then went on to live an exemplary life. What they get is an almost entirely symbolic record wiped clean. That’s not nothing. It’s a nice recognition. It’s also entirely different from an innocent person having a wrongful conviction overturned – a vindication of factual innocence. That remains a big deal even for someone who has already served a lengthy sentence. But it doesn’t free any one from jail.

It is at best a thin, thin clemency.

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