Biden made good use of the pardon power. It still needs reform.

On Friday, President Joe Biden commuted the sentences of nearly 2,500 people who had been convicted of nonviolent drug offenses — setting the record for issuing more individual pardons or commutations than any other US president.

Biden in December also commuted the sentences of 1,500 people who had been released from prison during the pandemic and have since been placed on home confinement, as well as the sentences of 37 out of the 40 people on federal death row.

These moves underscore how crucial the pardon power really is: the last possible corrective when the criminal justice system imprisons too many people and punishes them too harshly.
But it all comes after Biden showed the other side of the presidential pardon. Shortly after Thanksgiving, Biden issued a broad pardon of his son Hunter, arguing that Hunter had been unfairly prosecuted and that the tax evasion and gun charges brought against him were politically motivated. That decision was a stark departure from his campaign promise to reestablish a commitment to the rule of law and to restore norms that insulate the Department of Justice from a president’s conflicts of interest after Donald Trump so brazenly abandoned those principles during his first White House term.

Biden’s pardon of his son was roundly criticized by lawmakers, including members of his own party, and also appears to be unpopular with the American public. (According to an Associated Press poll, only around two in 10 Americans approve of Biden’s decision to pardon his son.) In the wake of the Hunter pardon, as well as Trump’s previous corrupt use of the power and promise to pardon participants in the January 6, 2021, insurrection, lawmakers have rightly renewed calls to place checks on the president’s pardon power.

Biden’s recent use of the pardon, however, emphasizes why the power is an important tool to preserve and why efforts to reform it ought to be careful. But there are still ways to ensure it’s used more for good than for personal gain.

That said, any attempt at pardon reform will face an uphill battle because the power is enshrined in the US Constitution — but given the bipartisan tendency to misuse it and the frustration people from both parties have over it, lawmakers now might have a unique opportunity to make some key changes.

The pardon is one of the president’s broadest and most unchecked powers. As my colleague Ian Millhiser recently pointed out, the Supreme Court has, for more than 150 years, acknowledged that presidents can issue pardons as they please — to whomever and however many people they want — and neither Congress nor the courts can get in the way.

The limits on the pardon power are also extremely narrow: Presidents can only pardon federal crimes, so presidential pardons don’t protect their recipients from being prosecuted under state laws. And presidents can’t issue pardons for crimes that may be committed in the future.

“The pardon power is certainly among the most expansive afforded to an American president and the least constrained,” said Donald Sherman, the executive director and chief counsel at Citizens for Responsibility and Ethics in Washington, a nonprofit government ethics watchdog, adding that it is “especially dangerous in the hands of a lawless president.”

Throughout American history, all but two presidents have made use of their pardon power, typically issuing them on their way out of the White House to avoid political backlash during their time in office. And many presidential pardons have been, to put it mildly, controversial.

Trump, for example, issued pardons of his close allies, including Roger Stone, Michael Flynn, and Steve Bannon. He also pardoned his son-in-law’s father, and even seemingly publicly dangled a pardon in front of Paul Manafort, his former campaign chair, when Manafort was under investigation over Russia’s interference in the 2016 presidential election.

Bill Clinton pardoned Marc Rich, a fugitive tax cheat whose ex-wife generously donated to Clinton and the Democrats, and Clinton also pardoned his half-brother.

But perhaps most (in)famously, Gerald Ford granted a pardon of Richard Nixon after the Watergate scandal led to Nixon’s resignation — setting the precedent that presidents are, in fact, above the law.

But the president’s ability to grant clemency is also a powerful tool that can be used for good, specifically to correct historic injustices perpetrated by federal courts, as evident in Biden’s decision today. Barack Obama granted clemency to nearly 2,000 people, most of them nonviolent drug offenders. It can also be a democratic tool, as was highlighted on Jimmy Carter’s first full day in the White House, when he pardoned the hundreds of thousands of Americans who evaded the Vietnam War draft, fulfilling a campaign promise.

Biden’s commutations of death row prisoners in December are another example of how pardons can be a tool for justice. While he still left three prisoners on federal death row — the Boston Marathon bomber, the Tree of Life Synagogue shooter, and the shooter at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina — the decision reflects changing public opinion over the death penalty. Thirty years ago, 80 percent of Americans believed in capital punishment. And while the majority of Americans still support the death penalty, that number has shrunk to 53 percent.

The movement to end the death penalty has long argued that the punishment is unconstitutional — that it is too cruel and unusual — and Biden’s commutations showed how the president can act on that principle even when Congress or the courts are too slow to do so.

By empowering the president, as the elected representative of the people, to grant clemency, the pardon is essentially the public’s only means of undoing convictions that we as a society decided were wrong

So while the pardon power has certainly been misused, it also serves an important purpose and shouldn’t be done away with entirely. That’s why efforts to rein it in should focus on narrowly limiting the president’s power by simply providing more transparency and oversight and the possibility of undoing a corrupt pardon.

One of the easier routes to reform the pardon is by creating new rules at the executive level. And though those can be easily undone — and are certainly unlikely to happen during the Trump years — they can set standards and public expectations about how presidents issue pardons.

A future president, for example, can establish a clemency board, similar to how many states grant pardons. The board would be staffed by experts, who would review petitions, and provide a more transparent and deliberative process than the current system. Right now, that happens at the Office of the Pardon Attorney with the Department of Justice, which has been criticized for its opaque process in how it makes recommendations for presidential pardons.

More complicated reforms would require a constitutional amendment enshrining the new limits.

“One thing that may be worth exploring is a congressional override,” Sherman said. That way, Congress doesn’t have to necessarily curtail the president’s power or put limits on who a president can and can’t pardon. But in deeply unpopular cases that present a conflict of interest, Congress can have a say in whether or not those pardons should stand. “If there was a supermajority override provision, [that] might address some of the most egregious cases,” Sherman added.

Other proposals could include putting explicit (though narrow) limits on the president’s power. Democratic Rep. Steve Cohen of Tennessee, for example, previously introduced legislation to amend the Constitution to bar presidents from being able to pardon themselves, their family members, and administration and campaign officials. “The framers of the Constitution included the pardon provisions as a safety valve against injustice, not as the means for a President to put himself, his family, and his associates above the law,” Cohen said in a statement at the time.

Until these reforms happen, presidents will continue to exercise one of their most sweeping powers with no checks and balances. Biden may have shown how this power ought to be used on his way out (Hunter pardon aside), but with Trump preparing to return to the White House more unrestrained than ever, leaving the pardon power untouched should worry lawmakers across the board.

Update, January 17, 12:20 pm ET: This article was updated with the news that Biden commuted the sentences of around 2,500 people.

Update, December 23, 11:30 am ET: This article was originally published on December 12 and has been updated with information about the commutations of people on federal death row.