Op-Ed: Great start, Mr. President. Bring on more mass pardons

Last week, Joe Biden pardoned 6,500 people charged with simple marijuana possession. The pardons benefit only people arrested under federal law — a tiny fraction of marijuana offenders. It would be easy to mistake this for a mere symbolic gesture.

But this is a country that incarcerates nearly 30% of its Black residents and condemns at least 70 million Americans to live with the lifetime consequences of a criminal record. Biden’s blanket pardon does matter, because it creates a blueprint for more Americans to receive a second chance.

If we think of pardons as offering categorical relief, rather than as an individual exercise of justice, the possibilities explode. The president identified a class of people deserving of relief, and with the swipe of a pen, granted it. This should be an example for other executives to follow.

One might imagine the use of mass pardons to curb the impact of a range of harmful criminal justice policies. For instance, there is broad bipartisan support for limiting the lifetime disabilities associated with a criminal conviction. How about a mass presidential pardon for all people who were convicted of offenses more than seven years ago and have completed their sentences? Similarly, there is substantial research showing that people “age out” of crime as they get older. How about a mass pardon for people over 40?

Presidents have expansive power under the Constitution to grant pardons, but they rarely use it broadly as Biden just did. Why? Because applications for pardons are typically evaluated on an individual basis and the Department of Justice has erected a byzantine process of review. Most pardon applications are left pending for years — or even permanently. Before this week, Biden had pardoned only 61 people. As of today, more than 30,000 petitions for pardon or sentence commutation are awaiting action. Ultimately, most will be closed without presidential review.

Mass pardons have been used exceedingly rarely throughout American history, but Biden’s act does have historical precedent. In 1977, Jimmy Carter pardoned hundreds of thousands of Vietnam War draft evaders. In 1868, also in the context of wartime activities, Andrew Johnson pardoned thousands of Confederate soldiers who had served in the Civil War.

Biden’s mass pardon confronts a metaphorical war: the war on drugs. Since the 1980s, an enormous uptick in drug prosecutions has terrorized poor communities of color and contributed to the era of mass incarceration. It’s not just about prison time. The consequences of a conviction, sometimes including loss of the rights to vote and serve on a jury, can long outlast a person’s sentence.

Pardons do not erase convictions like expungement does or release people from prison like commutation can. But a pardon can restore one’s civil liberties and revive economic and social opportunities, opening access to jobs, housing, student loans and occupational licenses.

As a law professor, I worked with students for 10 years on post-conviction cases, including the expungement of criminal records. Like pardons, expungements can mitigate some of the harsh collateral consequences of a criminal record. My law students asked dozens of clients about their goals in seeking criminal record expungement and, almost to a person, received an unexpected answer: Our clients wanted a clean slate. Biden’s pardons, too, offer this benefit. They serve as recognition by our national leadership that people convicted of marijuana offenses have experienced a traumatic and demoralizing encounter with the criminal legal system.

Pardons are only one form of the vast clemency authority granted to presidents under Article II of the Constitution. Clemency also includes the power to commute a sentence, which releases a person from prison early. Both presidents and governors have broad clemency powers and could unilaterally commute sentences for entire classes of people, correcting excesses of the criminal justice system.

When the COVID-19 pandemic hit, states across the country were charged with the task of reducing overcrowding in their jails and prisons to stem the spread of the virus within congregate living quarters. California required courts to review every prisoner’s individual record prior to release, a plodding case-by-case approach. Washington State, under Gov. Jay Inslee, made creative use of the mass clemency power to commute the sentences of 900 people serving time for nonviolent offenses, releasing them immediately.

There are many people serving harsh prison terms the public no longer deems just. Marijuana is legal in 16 states for recreational use and in 39 states for medical use. Yet we cage 40,000 Americans in prison cells for marijuana offenses, mostly at the state level. A mass sentence commutation could rectify this. Two-thirds of the public believes marijuana should be legalized nationally, suggesting governors would receive support for such an effort.

Mass clemency alone will not bring about the immense reforms needed within the criminal justice system. But Biden’s act of mercy should be recognized for the remarkable exercise of constitutional power that it is and for the blueprint it creates for second chances.

Jessica K. Steinberg is a professor at George Washington University Law School, where she directed the Prisoner & Reentry Clinic.