Last spring, I got on the phone with a guy who was locked up at Rikers Island. Modesto was 43 years old and hadn’t committed a crime. He had been sent to New York’s notorious jail complex on the East River, where he’d been held for almost five months at that point, for allegedly violating the conditions of his parole.
Rikers has a reputation for violence. Like any jail, it’s miserable on a good day, but in recent years it’s made headlines for guards assaulting prisoners at escalating rates, and for its role in the suicide of Kalief Browder, a 22-year-old from the Bronx who allegedly stole a backpack as a teenager and was kept in solitary confinement at Rikers for two years.
When I spoke to Modesto, who asked me not to use his last name, he was scared. Rikers was going into lockdown because of the coronavirus pandemic, which had started killing lots of people in New York. A judge had ruled that Modesto could go home — his alleged parole violation, it turned out, was the result of a mixup — but her decision had gotten lost in the jail’s bureaucracy, and Modesto was still stuck on the island 11 days later without anyone telling him why. The things he saw inside, as guards and prisoners scrambled to outmaneuver what they thought was an encroaching wave of death, were indelible. Despite guidelines from administrators about how to promote pandemic safety, the realities of jail life made most precautions impossible. Prisoners slept head-to-toe on cots inside packed dormitories, their coughs filling the night, and soap was in short supply. “They’re torturing us in here, man,” Modesto told me.
The mood he described was of barely checked panic. Rikers soon became the focus of a national outcry over the treatment of prisoners during COVID. This, in turn, led to modest reductions in local jail and state-prison populations across the country, most of them initiated by governors who finally saw the wisdom of preventing avoidable mass deaths long after advocates had started warning them. (In New York under Governor Andrew Cuomo, more than 800 people were eventually freed from state prisons. Thirty-five prisoners, nine parolees, and eight Department of Corrections staff still ended up dead.)
This is all to say that the U.S., in spite of itself, narrowly avoided a much costlier crisis than it got. But the same dismal conditions remain in place. Jails and prisons are still crowded, filthy, violent, and inhumane, and officials are still too slow letting people out of them.
Joe Biden knows this, and has set his presidential ambitions accordingly. He has expressed support not only for police reforms proposed after George Floyd’s murder last May, but also for new approaches to crime that would probably baffle the version of him that co-authored the 1994 Crime Bill: an emphasis on prevention over punishment, and a commitment to ending racial disparities in arrests and incarceration. “We can and must reduce the number of people incarcerated in this country while also reducing crime,” read the top bullet point on the Biden-Harris campaign website.
Whether these goals get realized depends mostly on what a divided Congress sends to the president’s desk. But more unilateral avenues to action are still open, including one he’s said he would use generously but hasn’t yet: his presidential clemency powers.
According to the New York Times, the Biden administration has signaled, as recently as this summer and in multiple conversations with advocates, that he would use clemency both broadly and soon, with an emphasis on advancing his racial justice agenda. This is significant, in light of Modesto’s story and others, because over the last several decades, presidents have been using their clemency powers less often, waiting until later in their presidencies to do so, and leaving people in squalid and dangerous conditions for longer periods of time because of it.
Modesto walked free soon after I spoke to him, and as a prisoner in a city jail, wouldn’t have benefited from a presidential commutation or pardon anyway — those only cover people imprisoned for federal crimes, which account for less than 10 percent of the incarcerated population in the U.S. But COVID and the policies implemented to deal with it have produced a new class of federally convicted people, about 4,000 strong, who were released as part of an effort to forestall outbreaks behind bars. They now face a kind of limbo, which Biden is in a unique position to resolve.
In the waning days of Donald Trump’s presidency, his administration issued a memo saying the thousands of people who’d been released from federal prison to home confinement during the “pandemic emergency period” would be locked up again as soon as the order was lifted, if their sentences weren’t up by then. According to the Times, this is still in effect, and the Biden administration has been weirdly cagey about whether it would reverse Trump’s order and let them stay home. These 4,000 prisoners are pre-selected and already free, so they’re easy candidates for commutations. The White House reviews the emergency declaration every three months. None of these reviews has yielded answers so far, and the next one is scheduled for July.
This situation is shaping up to be a test of Biden’s ambitions regarding clemency. There’s no concrete reason to think the president won’t make good on his promise to use clemency more than has become normal, but that’s mostly because the bar is so low. Since Richard Nixon was president — a useful marker here, because that’s when the era of mass incarceration started — there’s been a fairly steady downward trend in presidents’ use of this unique power, which is granted to them by the Constitution, and which entails mostly commutations (which partly or completely cut short sentences) and pardons (which essentially wipe out convictions).
Nixon granted clemency to 926 people. Trump granted it to 237, bookending a period of more than 50 years, starting with Ronald Reagan, that saw the numbers drop below 500 and stay there, with one exception, through the present day. (With the caveat that this period has seen two one-term presidents, Democrats have usually been more willing to use this power than Republicans, but not by much. ) The one exception was Barack Obama, who granted clemency, mostly in the form of commutations, to 1,927 people, the most since Harry Truman. As of July 1, 2021, there were still 153,683 federal prisoners.
Biden has hinted that he’ll start sooner rather than later, possibly even before the 2022 midterms, which is a big deal because of the politics surrounding the issue. The American antipathy toward clemency is one of the main motivators behind the downward trend in pardons and commutations: The appearance of being “soft on crime,” and the possibility that someone you free re-offends in some politically inopportune way, makes it hard for presidents to rationalize pardoning people or commuting sentences with any regularity. To minimize the political fallout, they usually wait until late to start granting the bulk of them. Oftentimes, like in Trump’s case, most get rushed through during a president’s last days in office.
The effect is that clemency has become really unusual. And when something is unusual, each decision becomes freighted with dramatic significance and scrutinized to the nth degree. There have, of course, been good reasons to monitor presidents’ clemency decisions. Trump used it to reward imprisoned cronies and mislead voters. Bill Clinton famously pardoned the husband of a wealthy Democratic donor. But the scrutiny is overwhelmingly due to its rarity, not its infrequent abuses. It’s been fashioned into an almost cosmically precious blessing to those who receive it, rather than a workaday part of a president’s duties.
Plenty of ideas have been floated about how to change this on a systemic level. Rachel Barkow, a law professor of New York University, has spent years researching and developing ideas for how to make clemency more common, in part by making it less politically perilous and less vulnerable to conflicts of interest. Both of these goals probably mean removing such decisions from the purview of the Justice Department, where they’re mostly handled today. Federal prosecutors are responsible for these people being in prison in the first place. Their decisions — which often determine which petitions get to the president, for example — inevitably run up against the fact that they’re often undermining, and potentially reversing, their own work.
To reduce the political risk, Barkow suggests establishing a clemency board, composed of interests from across the political spectrum, and spanning a wide range of people who work, have worked in, or have been impacted by the criminal legal system, to process requests and seek out candidates. This would spread out responsibility enough to take the weight off any one person, thereby encouraging more commutations and pardons, especially for someone like Biden, who says he wants to grant them. (Several states already have boards like this in place. Barkow, citing her research and others’, describes them as a “necessary precondition” where clemency is routine.)
Whatever the route, two things are clear about Biden’s plan so far: he hasn’t done anything yet, despite his signaling, and people close to him have indicated to the Times that he’s “not inclined to circumvent” the Justice Department — meaning he’s probably committed to an approach that preserves conflicts of interest and retains more political calculation than it needs to. This is bad for normalizing clemency. The president couldn’t end mass incarceration or even make a major dent in it, even with a more proactive strategy — the federal incarcerated population is too small as a portion of the whole, for one. But he can wield clemency symbolically, telegraphing to federal prosecutors which cases are worth pursuing, for example. And in more practical terms, he can spare as many people as he can from what is functionally a life of terror, torment, and uncertainty, and can do so now and regularly moving forward to prevent needless suffering.
Jails and prisons are scary and often life-annihilating places, even in non-pandemic times, and there are untold numbers of people who shouldn’t be there. Immediate fixes, though small, are available. The longer Biden waits and the rarer presidential clemency stays, the more unusual it will continue to be.