Meanwhile, the President kept waiting hundreds of clemency applicants whom the department had recommended to the White House months and even years earlier, according to multiple sources familiar with the clemency process who spoke on the condition of anonymity to divulge sensitive information.
Amid the blowback over Hunter Biden’s pardon, Biden soon announced almost 1500 commutations, in what the White House touted as the “largest single-day grant of clemency in modern history”. Like Biden’s son, those people were not individually vetted by the Justice Department, which carefully considers the circumstances of each case before issuing a recommendation. A Pennsylvania judge accused of taking payoffs in exchange for sending kids to juvenile detention made the list, sparking another outcry.
The mass commutation benefited only those who had been released from prison into home confinement; the hundreds of people whose clemency petitions have been cleared by the Justice Department – most of whom remain behind bars – are still awaiting the President’s signature.
Unless Biden takes dramatic action in the last few weeks of his tenure – a time when presidents traditionally flex their executive powers – he will leave a largely symbolic clemency record with limited practical impact in the eyes of many criminal justice activists and sentencing experts.
“One of the reasons I find the Hunter Biden pardon so jarring is because he has been so stingy with clemency relief for everyone else,” said Rachel Barkow, a New York University law professor and former member of the US Sentencing Commission. “There are a lot of people like Hunter Biden, who have committed crimes in the throes of addiction, and are sitting in prison. This is really shameful.”
Biden, his sister Valerie Biden, and his son Hunter Biden walk to board Marine One at the White House on July 26. Photo / The Washington Post
Though Biden campaigned on bringing equity to the criminal justice system by doing away with the death penalty and reducing the prison population, he has so far not embraced the clemency power with the same enthusiasm as his recent predecessors. Less than 2% of Biden’s roughly 1700 grants, about 31, actually reduced sentences for people who were incarcerated at the time, according to Justice Department data obtained by The Washington Post.
Biden pledged in a statement this month to “take more steps in the weeks ahead” and continue reviewing clemency petitions “to advance equal justice under the law, promote public safety, support rehabilitation and reentry, and provide meaningful second chances”.
The White House defended Biden’s decision last week to give commutations to the 1499 people serving the rest of their sentences at home under the Cares Act, a 2020 law passed during the coronavirus pandemic intended to protect vulnerable inmates deemed not to be a risk to public safety. An administration official said the cases were not individually reviewed because Biden decided on a “categorical commutation” of Cares Act beneficiaries who had demonstrated good behaviour for at least one year and had begun reintegrating into their communities.
Clemency advocates and Democrats in Congress welcomed Biden’s decision but said they have been urging Biden for years to focus on people behind bars, particularly those serving long prison terms for drug offences that have since had sentencing guidelines reduced.
“There are real life and death consequences,” said Zoe Towns, executive director of FWD.us, a bipartisan organisation that advocates for reducing prison populations. “Many of the people impacted by excessive sentences are now quite old and sick, and they can’t afford to wait another two or three years.”
During the Biden administration, 152 people have died in prison while their applications were under review, according to Justice Department data obtained by The Post.
President Joe Biden speaks at the White House on November 26. Photo / The Washington Post
Arturo Villarreal, who was serving a life sentence for marijuana trafficking and other crimes, was among them. He had spent more than two decades in prison when he applied for clemency in 2018 after a congressional overhaul of drug sentencing. His sister, Linda Rodriguez, said she wrote to Biden and that Villarreal was optimistic when he received official word in 2023 that his application was under review.
While he waited, Villarreal contracted coronavirus and then was diagnosed in 2022 with an aggressive form of cancer. His lawyer applied separately for compassionate release under a federal law that allows early release for certain dying and elderly prisoners. His probation officers visited the home of his sister, who promised, with his three daughters, to take care of him.
But days before prosecutors signed off on his compassionate release, Villarreal died in a North Carolina prison at age 66. The Justice Department closed his pending petition for commutation a few days later, in October 2023.
“He had done tons of time. The law had changed, and everything was in his favour; it was just so maddening,” said his longtime attorney, Nancy Barohn. “It was one of the most hideous experiences of my life. This guy was terminally ill, and we just wanted him to come home to die.”
An unfettered power
Presidents have almost unfettered power to grant clemency, intended as a tool to show mercy and correct injustice. Commutations cut short federal prison terms and pardons help former defendants obtain employment and regain civil rights, such as voting and gun ownership.
The Pardon Attorney’s Office is responsible for reviewing applications for clemency and forwarding recommendations to top Justice Department officials, who decide which petitions to bring to the White House for approval. Presidents are not bound by the department’s recommendations.
During the 2020 campaign, Biden pledged to continue Obama’s efforts to undo the harsh mandatory-minimum sentences faced by non-violent drug offenders. But amid little public attention to the issue, the White House made only scattered clemency announcements. By the end of 2023, Biden had issued 138 grants.
Last year, the Justice Department sought to speed the process with a more user-friendly clemency application and additional staffing and resources for the pardon office. At an event in April, Deputy Attorney General Lisa Monaco, who is responsible for sending recommendations to the White House, praised the pardon office for “breathing life into the clemency process”.
Pleas from criminal justice activists and Capitol Hill grew more urgent. In late October, several Senate Democrats, including Judiciary Chairman Dick Durbin of Illinois, pushed Biden to consider clemency for drug offenders serving long sentences that were reduced by the First Step Act, a bipartisan law signed by Trump in 2018. In a letter to the White House, the senators also pointed to crack cocaine offenders who received much harsher sentences than powder cocaine offenders.
Instead, Biden pardoned his son, reversing a long-standing pledge not to protect him from a prison term. The pardon was granted pre-emptively; Hunter Biden was convicted of gun-related and tax evasion charges and faced years in prison. Biden said at the time that his son had been “selectively, and unfairly, prosecuted”. Hunter Biden has blamed his crimes on drug addiction and talked about his efforts to recover.
Though some of Biden’s allies said he did the right thing to save his son from prison, especially in light of Trump’s vows of “retribution,” the pardon provoked widespread and bipartisan outrage.
“What about the other sons who are locked up?” asked Alice Johnson, the former drug offender freed from prison by Trump in 2018 who became a nationally known clemency advocate. “I’m not saying anything against a father’s love for his son, but there are a lot of sons and daughters who need his acts of grace and mercy.”
Less than two weeks later, still facing criticism, the President announced the batch of 1499 commutations – all people serving the rest of their sentence at home under the bipartisan legislation signed by Trump at the start of the pandemic.
The White House said Biden’s broad-based approach was consistent with his earlier decisions to grant clemency to marijuana offenders and military personnel convicted of crimes based on their sexual orientation: “The President has used categorical clemency more than any of his predecessors, which has allowed him to widely and systemically respond to historic injustices.”
But Biden has issued pardons to only one military veteran in that category and to 259 people convicted of possession or use of marijuana, according to the Justice Department. None of the people who benefited from these across-the-board clemency grants were behind bars.
“His grants so far have been wide but shallow,” said Mark Osler, a University of St Thomas law professor and nationally recognised clemency expert. “He’s ignoring the thousands of people who followed the rules and filed petitions for clemency from prison, and there is a deep unfairness to that.”
The hundreds of petitions awaiting Biden’s approval at the White House are part of a perpetual backlog that for decades has symbolised a broken clemency system. It’s also cloaked in secrecy, so those applicants don’t know where their petitions stand in the pathway from the Justice Department to the White House. There are almost 9400 petitions in the pipeline, according to the Justice Department’s website.
The 1499 commutations this month did not slash the waiting list because most of those people had not submitted clemency applications, according to one of the people familiar with the hundreds of petitions awaiting the President’s signature.
The rollout was rushed, according to several people familiar with the process. The announcement listed all of the names but left out details typically included about the nature of the crimes and the length of the sentences.
One name stood out and sparked a backlash: former county judge Michael Conahan, who with another judge was accused of illegally netting $2.8 million while sending juveniles to detention centres in what was called the “Kids-for-Cash” scandal. Conahan was found guilty of racketeering and tax fraud charges and sentenced in 2011 to 17 years and six months.
Conahan requested a commutation in 2017 but was denied last year, Justice Department records show. He was released into home confinement in 2020 under the Cares Act and anticipated completing his sentence in 2026, according to an administration official. Biden’s commutation ends his home confinement, though he will remain under supervised release.
“I do feel strongly that President Joe Biden got it absolutely wrong and created a lot of pain here in northeastern Pennsylvania,” Pennsylvania Governor Josh Shapiro said earlier this month. “This was not only a black eye on the community, the kids-for-cash scandal, but it also affected families in really deep and profound and sad ways.”
Though Shapiro’s criticism reflected the overwhelmingly negative response to Conahan’s commutation, others were supportive while urging the President to do more.
“We would like to see the same kind of compassion and mercy extended to children nationwide who continue to suffer harm from our juvenile and criminal legal systems,” said attorney Marsha Levick of the Philadelphia-based Juvenile Law Centre, who represented victims’ families and helped expose the scandal.
The White House also announced 39 pardons last week and highlighted some of those personal stories, including Terence Anthony Jackson, 36, who was convicted of a non-violent drug offence and since leaving prison has volunteered as a barber to needy children; and Edwin Allen Jones, 60, another drug offender who went on to serve in the US Army and achieve the rank of captain.
Now, as he nears his final days in office, Biden’s full tally stands at 65 pardons and 1634 commutations, according to Justice Department data.
The appeals for more action have continued in impatient phone calls and personal pleas.
“We’re still in discussions with him, so it’s not over yet,” said Senator Cory Booker, a judiciary committee member who signed the October letter to Biden, said recently. “I’m hoping there’s going to be a lot more.”
Biden also did not deny a single petition until this year, when he turned down 7903 requests for pardons and commutations. Failing to deny petitions leaves clemency seekers in limbo, and they cannot reapply until they are turned down. “It’s a car wreck of government administration, a nonfunctioning process,” Barkow said.
Biden’s recent denials significantly reduced a growing backlog of clemency petitions during his presidency. He inherited more than 15,000 petitions left over from Trump’s presidency; another 13,600 have been filed since he took office.
It’s not unusual for presidents to reserve the bulk of their clemency actions for their final year in office. In fact, every President since Gerald Ford has issued pardons or commutations in his last days in office, according to the Pew Research Center.
Biden is facing pressure to clear federal death row and convert those inmates’ sentences to life without parole before he cedes the White House to Trump, a supporter of capital punishment. He is also considering issuing pre-emptive pardons for public figures who could face prosecution from a hostile president-elect who has vowed “retribution” against his legal and political opponents.
“Clemency is the most lawless power included in the Constitution, and the President can use it on any grounds whatsoever,” noted attorney Alan Dershowitz, who advised Trump during his first term. “When you give somebody absolute authority, there’s always going to be criticism about how it is used.”
