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Biden’s Criminal Justice Reform: Clemency is the First Step

“Today, too many people are incarcerated in the United States – and too many of them are black and brown.” Presidential candidate Joe Biden

During the 2020 Presidential campaign, candidate Joe Biden pledged to strengthen America’s commitment to justice. This commitment includes reducing the number of people incarcerated, especially for non-violent drug offenses. It is estimated that over 450,000 inmates are serving time for non-violent drug offenses.

One such inmate is Joe Pinson, who was sentenced to a five-year mandatory minimum prison sentence for marijuana cultivation and possession. Pinson, who had no previous criminal history, used the marijuana for debilitating and life-threatening bouts of asthma. 

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While effective criminal justice reform includes numerous time-consuming, long-term steps, President Biden must begin the reform by granting early releases to those serving disproportionately long sentences for non-violent offenses, many of whom are black and brown offenders.

This reform started with President Barack Obama, and while President Donald Trump did not continue the reform, he did grant clemency in some egregious cases. President Biden now has the chance to quickly initiate this very important first step as part of an overall meaningful criminal justice reform.

1994 Crime Bill Took a Tough on Crime Approach

How did we get to the point of having so many inmates in federal prison with disproportionately long sentences? What led to the era of mass incarceration? Why does the United States house more inmates than any other country?

These questions can be answered by referring back to the 1994 crime bill, known as the Violent Crime Control and Law Enforcement Act. The crime bill’s tough on crime approach was designed to combat the rise in violent crimes, in part due to the crack cocaine epidemic. This crackdown predominantly impacted minority neighborhoods. The 1994 crime bill also increased federal sentencing as a direct attack on the war on drugs.

While the crime bill had some effective provisions, too many were included for political reasons without weighing the long-term effects. Critics of the 1994 crime bill included Vice President Kamala Harris, who stated that it contributed to the mass incarceration by implementing federal three-strike laws and by providing substantial funding for building new prisons throughout the country.

President Obama’s Clemency Initiative

When President Obama took office in January 2009, more than 1.6 million prisoners were in federal and state prisons, according to the Bureau of Justice Statistics. Obama pledged to provide meaningful criminal justice reform and reduce the number of offenders in federal prisons.

To this end, Obama started a Clemency Initiative that encouraged qualified federal inmates to petition the President for early release. Qualified federal inmates were defined as those who met the criteria established by the initiative, which included non-violent criminal offenders with no past criminal record who would have received a substantially lower sentence if convicted of the same offenses today.

The program ran from 2014 until Obama left office in January 2017. The initiative was a success. It received over 36,000 petitions, of which 1,715 inmates were released via the presidential commutation powers. A commutation involves changing a legal penalty or punishment to a lesser one, but the original conviction stands.

President Trump’s Use of Clemency

Trump did not continue Obama’s Clemency Initiative, but he did grant clemency to numerous offenders who met the same or similar criteria. For example, he commuted the sentence of Carolyn Yeats, an African-American first-time, non-violent drug offender, who served seven years of a 20-year sentence. Although Yeats was released due to Trump’s commutation, she still has the federal conviction on her record.

President Biden’s First Step to Begin Meaningful Criminal Justice Reform

President Biden must create a task force that includes Department of Justice attorneys who are tasked with developing a clemency program and then reviewing the files of qualified federal inmates.

The task force must first develop the criteria it will use to review inmate files and make recommendations to the President. The qualifying factors should be similar to those used by the Obama administration, but expanded to include the prisoners’ conduct while incarcerated and what they have done to better themselves, including education, training, and betterment counseling programs completed.

Once the task force develops the criteria and implementing instructions, it would then review the files and provide monthly clemency recommendations to President Biden’s office. The President should then expeditiously act on the monthly recommendations and grant clemency in the appropriate cases. By acting quickly, this process will right past wrongs and decrease prison overcrowding.

Many presidents wait until near the end of their term before granting clemency, but making this a continuous process will begin the first steps of President Biden’s intent to create meaningful criminal justice reform.

Kerry L. Erisman is an attorney and associate professor of legal studies with American Military University. He is a retired Army officer who previously served as an Army military police and later as a prosecutor, chief prosecutor, and defense attorney. Kerry writes and teaches on important criminal justice issues and military spouse issues including leadership, critical thinking, and education.

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