Within hours of President Joe Biden’s announcement on Sunday that he had pardoned his son Hunter for gun possession and tax evasion, a bipartisan backlash ensued. “No one is above the law,” scolded Jared Polis, the Democratic governor of Colorado. “What Americans can’t forgive is Biden lying,” said Republican senator Tom Cotton, citing the president’s prior claim that he would not intervene on his son’s behalf. “Obnoxious hypocrisy,” agreed the New York Times’ Bret Stephens, while pollster Nate Silver blasted Biden as a “selfish and senile old man.”
While these critics have a point that Biden behaved hypocritically, proving that he is not as immune to Trumpian bouts of naked self-interest as his defenders insist, a more damning question remains: If Biden is so concerned about the overreach of the justice system, then why hasn’t he pardoned more people? The Constitution grants the president sweeping powers to issue pardons and commutations to anyone convicted of federal crimes. Yet Biden has been so hesitant to use them, particularly on imprisoned people, that pardoning his son now looks exceptional and much more corrupt than it otherwise would.
There are currently about 158,000 people in federal prison, most of them for nonviolent offenses, and presidential clemency is the quickest way to get them out. When he campaigned in 2020, Biden, a former “tough on crime” senator who co-authored the 1994 Crime Bill, acknowledged that mass incarceration was a crisis. “We can and must reduce the number of people incarcerated in this country,” read his campaign website, which was drafted amid the reformist fervor of the Black Lives Matter movement. In the lead-up to the 2022 midterms, when pundits and political scientists predicted a “red wave,” Biden made the relatively risky move of signaling to advocates that he planned to use his clemency powers aggressively and soon by granting pardons and commutations to entire classes of convicted people, with an eye toward eliminating racial disparities.
But as of Hunter’s pardon, Biden had only pardoned 26 people in prison and granted commutations to 137 more — part of a dispiriting yearslong trend away from mercy. (Biden did issue two blanket pardons to people convicted for minor marijauna-related crimes, like simple possession, though none of them were in prison.) Unless he changes course by the time he leaves the White House in January, the greater clemency scandal of his administration will not be that his son escaped punishment, but that thousands of others did not.
It would be easy to ascribe Biden’s sudden reversal on Hunter to the fact that Trump’s second election set fire to whatever hallowed protocols used to govern how politicians behaved. The Republican president-elect has been unambiguous about his plans to dole out clemency based on personal loyalty, particularly to the rioters who stormed the U.S. Capitol on January 6, 2021. He has also promised to enact vengeance on his political enemies, which would make the younger Biden especially vulnerable within a prison system that is under Trump’s control. “Trump would have sat atop the day-to-day fate of Joe Biden’s son under the custody of the Federal Bureau of Prisons,” wrote ABC News legal contributor Kim Wehle, defending Biden’s decision.
But the truth is that clemency has long been in decline. After decades during which the typical U.S. president granted it to well over 1,000 people — Franklin Delano Roosevelt holds the record with 3,796 — Richard Nixon pardoned or commuted sentences for just 926. Starting in the late 1960s, voters and politicians began to offload social problems like poverty and mental illness onto prosecutors and the police, which gave clemency more of a political cost. Being perceived as “soft on crime” started to look like electoral suicide. Sensational news coverage of crimes committed by convicted people who had been shown mercy overshadowed the benefits of giving anyone a second chance. George H.W. Bush granted clemency to just 77 people.
One consequence of this new normal is that only two of Nixon’s nine successors — Jimmy Carter (566) and Barack Obama (1,927) — granted clemency to more than 500 people. Today, it is customary for presidents to delay issuing pardons or commutations until doing so is less politically dangerous, like after elections or when they’re about to leave office, which forces people to languish in dangerous prison conditions for longer.
There are ways to fix this, or at least to mitigate the political drawbacks of granting people their freedom. Some states have boards that review clemency candidates, which takes some of the responsibility off of any one official while reducing conflicts of interest. By contrast, federal candidates are currently reviewed by the Justice Department, the very agency that charged them in the first place. The boards, writes law professor Rachel Barkow, are a “necessary precondition” for clemency to become common. But Biden has firmly resisted taking clemency reviews out of the DOJ’s purview, ensuring that the current system’s political risks stay intact.
Biden still has the power to commute the sentences of all 40 men on federal death row, effectively sparing their lives. That their fate remains in doubt casts his decision to pardon Hunter in an especially unflattering light. It is perhaps unsurprising, and in some ways even relatable, to extend special grace to one’s child, especially if one feels responsible for their persecution. “I would have done the same thing,” wrote Washington Post columnist Eugene Robinson. “I would have pardoned a son who faced possible federal prison time not because of the crimes he committed, but because of me.” Yet the moral alternative is not to suppress that impulse, but to extend it to as many people as possible, especially those who are in the most perilous conditions.
There’s nothing in the law or the Constitution that limits Biden’s ability to do so on behalf of federal prisoners — merely the short time he has left in office. His decision to pardon Hunter knowing the right-wing firestorm it would provoke suggests that blowback has lost some of its ability to frighten him, while being a lame-duck president limits the political downsides anyway. It will be all the more incriminating of his character and his presidency if, even now, he can’t muster the courage for others besides his son.
