Biden opens the jailhouse door

Joe Biden is not going gently into that dark night, politically or cognitively. He is going down with large, bold actions. The latest is a mass commutation for some 2,500 “nonviolent drug offenders.” Biden’s justification is that they were sentenced under laws that have now been overturned as the country has moved to more lenient treatment of all drug offenses and eliminated differences between laws penalizing crack cocaine and powdered cocaine.

Those are reasonable justifications, but they are far from the whole story and far from the way the White House is selling the action to voters and friendly journalists.

The vast majority of the prison terms were actually given to dealers or violent offenders, mostly members of criminal gangs. These were not simply individuals caught up in older laws that have now been overturned. They received sentences for lesser crimes because the courts and prosecuting attorneys have been swamped with drug cases and violent crimes. To clear the dockets, district attorneys pled down these serious offenses so they don’t have to go through the time, effort and expense of a trial. That’s a very different story from sentences for individual users who were caught up in old laws that are now considered antiquated or unfair.

Second, there is a partisan political angle here since many of the commutations will go to members of minority groups — groups that have been drifting away from the Democratic Party in recent years. Biden’s move shores up his party’s embattled position in that broader constituency.

Third, the president’s ability to issue mass pardons is essentially a royal prerogative to change the law and court decisions. That prerogative is locked into the Constitution, and it won’t be changed. It was an expected to be used for a few individual cases where the president determined justice would be served by a pardon or commutation. No one ever expected presidents to issue sweeping pardons for a whole class of people duly convicted of crimes, effectively rewriting the law by executive prerogative. The same issue will come up again, perhaps as soon as next week, when president Donald Trump issues expected pardons and commutations for hundreds of January 6 prisoners. The big difference will be how the media plays the two mass pardons.

Will this be the last time President Biden uses his pardon power before he leaves office? No one knows, but we’ll find out very soon. Two groups will be watching with special interest: Biden family members who might be subject to prosecution and members of the congressional January 6 investigation, especially Liz Cheney, who has been accused of interfering with a witness in the investigation.

The mass commutations may be an effort to distract from a coming pardon for family members, in addition to the one already given to Hunter, and for political allies of Biden and his party. The president is surely under tremendous pressure to issue those pardons before he leaves office on Monday. 

The bottom line is that the mass commutation for 2,500 drug offenders is much more than it appears at first glance, and it may not be Biden’s last use of this special power before he leaves office.