Biden Begins Using Clemency To Ameliorate the Damage Done by the Draconian Drug Policies He Long Supported

The 75 commutations announced today, while impressive compared to the pitiful records of previous presidents, pale beside a huge backlog of petitions.

President Joe Biden used his clemency powers for the first time today, granting three pardons and 75 commutations. All but one of the beneficiaries were convicted of drug offenses, and many were serving egregiously long prison terms of the sort that Biden enthusiastically supported during his 36 years in the Senate.

The commutations announced today, Biden noted, involve "people who are serving long sentences for non-violent drug offenses, many of whom have been serving on home confinement during the COVID pandemic—and many of whom would have received a lower sentence if they were charged with the same offense today, thanks to the bipartisan First Step Act." The New York Times reports that "almost a third of those who benefited from the clemency would have received a lower sentence if they were charged today."

As a presidential candidate, Biden presented himself as criminal justice reformer who had seen the error of his draconian ways. He called for abolishing the mandatory minimum sentences he was largely responsible for creating and promised to "broadly use his clemency power for certain non-violent and drug crimes." While Biden still faces a huge backlog of clemency petitions and has a long way to go in ameliorating the damage he did as a gung-ho drug warrior, this first installment of commutations seems promising because of its timing.

Although Biden waited more than 15 months before issuing any pardons or commutations, that delay compares favorably to those of many previous presidents. Even Barack Obama, who ultimately granted a record 1,715 commutations, did not approve any until the last year of his first term, and then just one. Obama did not get serious until the third year of his second term, and the vast majority of his commutations came during his last year in office.

That sort of timing is typical. Presidents tend to treat clemency as an afterthought rather than an ongoing process of correcting injustices, partly because they figure any political backlash against their decisions will be limited if they make them on their way out the door. Biden evidently anticipates that the net political impact of freeing nonviolent drug offenders will be positive, which is a good sign.

The Times suggests that Biden was motivated by "growing consternation among progressive groups, which say the president has not focused enough on issues resonating in communities of color, such as voting rights or legislation to overhaul policing." In light of falling approval ratings and "a domestic agenda stalled amid a bare majority in Congress," it says, "the president has fielded calls from his allies to pivot away from day-to-day negotiations with lawmakers and instead wield his executive power." Since the Constitution gives the president plenary power to grant pardons and commutations, it is one indisputably legal way he can act unilaterally to placate his progressive critics.

Biden's clemency actions no doubt will provide ammunition to mindlessly punitive politicians like Sen. Tom Cotton (R–Ark.). But the president's commutations should count in his favor among people who recognize that there can be such a thing as an excessively harsh penalty for violating the government's arbitrary restrictions on psychoactive substances.

The successful petitioners include Jose Luis Colunga, a Nebraska man who was convicted of conspiring to distribute 1,000 kilograms or more of marijuana—the sort of conduct that is now treated as a legitimate business in most states. Colunga received a 20-year sentence in 2010; he is now scheduled to be released in October 2023 after serving 13 years.

Biden also granted a commutation to Byron James Miller, a Missouri man who received two consecutive sentences, totaling nearly 42 years, for crack cocaine offenses in 1997 and 1999. Miller will now go free next April, having served 26 years.* Sharon Louise Boatright, a Texas woman who received a sentence of nearly 16 years in 2013 for possession of methamphetamine with intent to distribute, is now also scheduled to be released next April after almost a decade behind bars.

Even with the commutations, these sentences are unconscionably long, especially for crimes that entailed nothing more than consensual transactions among adults. But Biden is at least using his clemency power to address some of the harm caused by the brutal drug policies he pushed before he saw the light.

Erik Altieri, executive director of the National Organization for the Reform of Marijuana Laws, notes that nine of Biden's clemency actions—one pardon and eight commutations—involved people convicted of marijuana offenses. "Branding thousands of our citizens as lifelong criminals because of a marijuana-related offense serves no legitimate societal purpose," he says. "While granting clemency to nine individuals for federal marijuana offenses is the right thing to do, it is woefully inadequate when there remain over 10,000 individuals who still suffer under the weight of a federal charge on their criminal record. It is well past the time for President Biden to make good on his campaign promise to expunge the records of all federal marijuana offenders and prove that justice isn't just a buzzword he uses to gain votes during election season."

The Times notes that "Biden has issued more grants [of] clemency than any of his immediate five predecessors at the same point in their presidencies." But today's commutations, while impressive by the pitiful standards of most recent presidents, are barely noticeable next to the appalling backlog of some 19,000 petitions that Biden still faces.

"While today's announcement marks important progress," Biden says, "my Administration will continue to review clemency petitions and deliver reforms that advance equity and justice, provide second chances, and enhance the wellbeing and safety of all Americans." The bipartisan coalition that recognizes the cruelty frequently inflicted by our criminal justice system should hold him to that promise.

*CORRECTION: This post has been revised to correct the information about Miller's sentences.