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Melissa Harris-Perry: Welcome to the Takeaway. I'm Melissa Harris-Perry. Article II, Section 2 of the United States Constitution reads in part the president shall have power to grant reprieves and pardons for offenses against the United States. Yesterday, President Biden used this presidential power for the first time in his White House tenure, granting clemency to 78 people. Here's Press Secretary Jen Psaki.
Jen Psaki: The president announced 75 sentence commutations and 3 full pardons. All of these individuals were convicted of nonviolent drug offenses, and many have been successfully serving their time on home confinement.
Melissa Harris-Perry: Now, there are currently over 18,000 outstanding petitions for clemency still pending. As a candidate, Biden ran on a criminal justice reform platform. It included in part releasing those who were serving time in federal prison for marijuana-related crimes, and expunging their records. Here's Biden in a 2019 debate during the democratic primaries.
President Biden: I think we should decriminalize marijuana period. I think anyone who has a record should be let out of jail, their record is expunged, and be completely zeroed out.
Melissa Harris-Perry: Today, almost a year and a half into the Biden presidency, approximately 2,700 inmates are still federally imprisoned for marijuana-related offenses. Of the 78 granted clemency yesterday, 9 had received marijuana-related convictions. During a White House Press Conference, Jen Psaki focused on the ways that these 78 reprieves compared to those issued by President Biden's predecessors.
Jen Psaki: The president has issued more commutations at this early point in his presidency than any of his last five predecessors at the same point in their first terms. We are far ahead of anyone, any of the last five presidents.
Melissa Harris-Perry: That's true. For comparison's sake, President Obama granted just 22 pardons and 1 commutation in his entire first term. President Trump made headlines for his controversial 11th-hour pardons and commutations in his last days in office, but according to Pew research, he granted fewer acts of clemency, 237 than nearly every other president since 1900. The only presidents with fewer were presidents, George H.W and George W. Bush. The Biden administration has signaled that yesterday was just the beginning, but it's still it's clear that the clemency process is lengthy and ultimately benefits only a small number of those caught up in our system of criminal justice. Let's talk with Austin Sarat, professor of jurisprudence and political science at Amherst College. Professor Sarat, thanks so much for being here.
Austin Sarat: It's my pleasure. Thanks for having me.
Melissa Harris-Perry: What do you make of Biden's first pardons and commutations?
Austin Sarat: They come a little late for my taste. I would describe these acts of clemency as dealing with low-hanging fruit. This is not a very courageous act for a president who campaigned vigorously as a criminal justice reformer and a skeptic of the unfortunate and gross sentencing disparities that catch up all too often, Black and brown people on drug offenses.
Melissa Harris-Perry: Of course, the mood of the nation in 2020 was really quite different on this issue than it is now. Certainly, we've seen as a political matter that these questions of being tough on crime, it's almost like it's 1993 around here.
Austin Sarat: That is certainly the case. There isn't much political benefit when a president grants commutations and pardons. You don't see a spike in the president's popularity because the president lets people out of jail or reduces sentences. That's why I say one of the ways to think about clemency, to think about commutations and pardons is it requires a stiff political backbone and some courage.
Melissa Harris-Perry: Talk about the process for clemency. There's 18,000 petitions, just 78 granted. What does it take to go from being a petitioner to someone who's received clemency?
Austin Sarat: You apply through the justice department. Your petition goes to the pardon attorney. The pardon attorney does a review and forwards her recommendations onto the deputy attorney general. Who does another review and forwards recommendations onto the White House Counsel. By the time these petitions make it to the president's desk, they've gone through a lengthy and bureaucratically complicated process of review.
Melissa, there is something odd about locating the clemency review process in the department of justice. After all, it's the department of justice that is responsible for putting these people in jail in the first place. Many people have now called for the reform of the clemency process and the creation of a genuinely independent commission to review petitions and forward them onto the president.
Melissa Harris-Perry: Let's go back a bit in history. Who in our nation's history has had that courage, that stiff political backbone, and truly made some impact with their pardon decisions?
Austin Sarat: First of all, I want to say that if you go back to the founding of the Republic, the president's clemency power was celebrated for lodging in the president, the ability to act in a merciful way. Chief justice, John Marshall, the first chief justice of the United States described clemency, commutation, and pardon as a grace, which could be extended by the president. In the modern period, presidents think about clemency less as acts of mercy and more as error correction.
In fact, if you look at what President Biden has done, he's basically saying that these low-level drug offenders received excessive sentences, and he's acting to correct that mistake. Now you ask who was most vigorous in using the clemency power, Woodrow Wilson, Franklin Roosevelt, Dwight Eisenhower, Lyndon Johnson. Let's look back to Herbert Hoover who only served one term, he granted just short of 1,200 clemencies. If Biden is going to grant 70 per year, he's got a very long way to go to reach the level that even someone like Herbert Hoover reached.
Melissa Harris-Perry: Let's talk about a more recent president. Let's talk about President Trump. We did see him wield this power in what felt like opportunities to shield or absolve his allies or those he deemed loyal, as you talk about mercy as a framework, was the way that President Trump used his pardon power? Was that a deviation from presidential norms?
Austin Sarat: In one way it was, and in another way, it wasn't. He wasn't the only president who used clemency as favoritism. You go back to Bill Clinton's pardoning of Marc Rich, who was a donor. If you actually listened to what the president said when he granted these clemencies. Take it on face value, Trump also used clemency or presented his use of clemency as error correction. Releasing people from jail, or reducing their sentences, often saying the prosecution was "unfair."
Mercy-based clemency is clemency in which a president acts not simply to correct an injustice, but to achieve something that that president thinks is genuinely valuable. Here's an example of what I would call courageous clemency that President Biden might entertain. Joe Biden is the first president of the United States to be an openly abolitionist president, meaning a president who has stated openly his opposition to the death penalty.
One thing that president Biden could do, it would take courage would be to commute the sentence of everyone on the federal government's death row. Do I see that happening? No, I don't see it happening, but it would exemplify a use of the clemency power that would be courageous important and articulate what President Biden has said, he already values.
Melissa Harris-Perry: If I'm a person who's hoping for presidential mercy, for clemency, for pardon, is it better for me or worse for me to have a high profile and potentially almost celebrity status? I'm thinking here of like for Leonard Peltier, is his high profile something that makes it more or less likely that he could ever receive this pardon?
Austin Sarat: Again, I think that it depends for some presidents, including, of course, President Trump. It seemed to be that being a high profile criminal or high profile person who had been sentenced in the federal system was a benefit. Indeed, in some ways, President Trump seemed to go out of his way to pardon people who were high profile enough that he knew that their pardons would stir up liberal outrage.
What President Biden has done with his first clemency is, in a sense, returned clemency to its a more historical norm, in which being high profile was not a particular advantage in seeking clemency. Here's the question. Of course, one can always ask if you look at the 78 acts of clemency that the President has done and you look at the cases in which he's granted pardons or commutations. It's pretty hard to distinguish these cases from literally hundreds if not thousands of others who have received similar sentences and serve similar amounts of time.
Melissa Harris-Perry: Is there a way to make the process more equitable?
Austin Sarat: Courts when they've been asked to review grants of clemency by presidents or governors have said the chief executive can grant clemency for good reason or bad reason or no reason at all. The clemency power is a vast and largely unregulated power. Whether it'll be used equitably or not depends upon the sense of justice, fairness, and the values of the person in the Oval office. If we want a more equitable use of the clemency power, we need to elect presidents with a fine-tuned sense of justice, and more importantly, with a commitment to being merciful.
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Melissa Harris-Perry: Austin Sarat is a professor of jurisprudence and political science at Amherst College. Professor Sarat, thank you so much for your time today.
Austin Sarat: Thank you. Thanks again for the opportunity to visit you on your show.
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