Biden set to flex clemency powers

White House officials are signaling that President Biden is prepared to flex his clemency powers as officials wade through a large backlog of requests behind the scenes, according to advocates with whom the White House has consulted on criminal justice reform.

The White House held a Zoom call last week to discuss criminal justice reform with advocates and formerly incarcerated people, some of whom are pressing Biden to use his powers to free people jailed on drug offenses and sick and elderly people who pose no threat to society.

While the White House did not signal any imminent moves, officials indicated that Biden will not hold off until later in his term to issue pardons or commutations.

“It was clear that they are working on something,” said Norris Henderson, founder and executive director of New Orleans-based Voice of the Experienced, who participated in the call. “They are looking at that right now as an avenue to start doing things.”

The White House declined to comment for this report when asked about Biden’s plans for clemency grants or his timeline.

Asked at a briefing Wednesday whether the Biden administration has a timeline for pardons or commutations, White House press secretary Jen Psaki answered: “I don’t have any previewing of that to provide and probably won’t from here.”

Biden disappointed some advocates by not granting clemency to anyone in his first 100 days in office and has faced pressure to take action to reform the criminal justice system and address racial injustices.

Given Democrats’ slim majorities in Congress, the broad clemency powers afforded to the president could be an attractive way for Biden to show he is taking action on reforming the justice system. The Justice Department faces a backlog of some 15,000 petitions for clemency.

DeAnna Hoskins, president and CEO of JustLeadershipUSA, said officials communicated on the call last week that Biden is “not waiting until the end of his presidency” to issue pardons or commutations.

“It was very promising because he already, from the White House perspective, has staff working on this,” Hoskins said.

“What we heard was a commitment that clemency will be used, that this administration is not afraid to use that as a tool but also does not necessarily feel the need to wait until the end of the term,” added Brittany White, a decarceration manager at Live Free, another participant.

Vivian Nixon, executive director of the College & Community Fellowship, described the White House as more noncommittal, saying there was not a “promise to do anything” but that officials acknowledged “that they are looking at this issue very closely.”

Biden’s record on criminal justice is mixed. He has faced backlash for his role in passing the 1994 crime bill that critics say contributed to mass incarceration and had a disproportionate impact on communities of color.

As part of the criminal justice platform he unveiled on the campaign trail, Biden promised to use his clemency power to “secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes” if elected.

Presidents often wait until the end of their terms to grant significant numbers of pardons and commutations — President Obama granted 330 on his last day in office and President Trump, 144 – but Biden has been urged to take action as quickly as possible to grant clemency and reform the system through which decisions are made.

The National Council for Incarcerated and Formerly Incarcerated Women and Girls spearheaded a campaign to pressure Biden to grant clemency to 100 women in his first 100 days in office, but that milestone came and went last week without action from the White House.

The American Civil Liberties Union has petitioned Biden to grant clemency to 25,000 people as soon as possible, calling mass incarceration a “moral failure” and “racial justice crisis.”

White House officials including domestic policy adviser Susan Rice, senior adviser Cedric Richmond and counsel Dana Remus convened the call last Friday to hear criminal justice reform recommendations from advocates, and clemency was among the topics discussed.

The White House has made it clear that Biden will take a different approach to using the broad presidential pardon power afforded by the Constitution than Trump, who all but abandoned the process normally used to review clemency requests and instead largely granted them to well-connected individuals and political allies.

Psaki told reporters during Biden’s first week in office that he would use his clemency power “judiciously.”

“One thing that was very clear from the conversation was there will be a process,” Desmond Meade, president and executive director of the Florida Rights Restoration Coalition, said of Friday’s White House call. “At the end of the day, they know that there are changes that should be made, but there should be a process there that makes it fair for everyone.”

The clemency process begins in the Office of the Pardon Attorney at the Justice Department, which works closely with the White House on reviewing clemency petitions. Some advocates have pushed for the office to be moved out of the Justice Department to ensure the process by which the bids are reviewed is not influenced by prosecutors.

The late confirmation of Attorney General Merrick Garland in March may have delayed plans to take action on clemency. Garland has sought to advance police reform in his first weeks by rescinding a Trump-era memo restricting the use of consent decrees to reform police departments and announcing pattern-or-practice investigations into the Minneapolis and Louisville, Ky., police departments.

Friday’s call was the first in what is expected to be a series of White House engagements with criminal justice reform advocates and individuals who have been directly impacted by the prison system.

Officials heard a host of recommendations from a group of 10 advocates. Officials were urged, for instance, to look at redefining homelessness at the Department of Housing and Urban Development and to stand strong in support of the House-passed voting rights and elections reform bill known as the For the People Act.

Participants expressed optimism that the White House is serious about addressing criminal justice reform and giving those who have been impacted by the justice system a seat at the table.

“This administration, I think, is trying to turn the clock back to where we were prior to the Trump administration and figure out what the right thing to do is under these circumstances,” said Nixon. “They’re getting an earlier start than the Obama administration. That’s a good sign.”

–Updated at 1:34 p.m.