Earlier this month, nearly 1,500 Americans found themselves the recipients of very good news: President Joe Biden had granted them executive clemency. Thirty-nine were given full pardons. “America was built on the promise of possibility and second chances,” the White House’s press release read. “As President, I have the great privilege of extending mercy to people who have demonstrated remorse and rehabilitation.” Biden’s office was at pains to clarify that while the president had shown mercy, he hadn’t shown too much mercy. Those receiving clemency in the form of commutations were all under home confinement only, and those receiving pardons had all been convicted of nonviolent criminal offenses. Almost two weeks prior, Biden had also pardoned his son Hunter, who had been convicted of gun-related felonies and was facing tax charges. Hunter received the full measure of presidential mercy.
Blowback came swiftly in both instances. Biden was denounced for pardoning his son, because he reneged on prior commitments not to interfere in Hunter’s cases and also because Democrats worried that the move would provide Donald Trump with ammunition for his claims of Democratic corruption as well as justification for his own planned pardons. The president and his team likely expected as much.
What they might not have expected was for the public to react so angrily to the bigger batch of commutations and pardons. Citing clemency picks she disagreed with, Senator Amy Klobuchar of Minnesota called for pardon reform, suggesting that the job be outsourced to a review committee tasked with making recommendations. She wasn’t the only one disappointed with Biden’s selections—online outrage surrounded the commutation of the ex-judge Michael Conahan’s sentence, who had accepted cash kickbacks from a juvenile detention center for sentencing minors to time behind bars. Conahan was sentenced to 17 and half years in prison, then was released to home confinement during the pandemic, and is now free. “I am shocked and I am hurt,” Sandy Fonzo, the mother of a boy who had committed suicide after being placed in a center by Conahan, said in a statement. “Conahan’s actions destroyed families, including mine, and my son’s death is a tragic reminder of the consequences of his abuse of power. This pardon feels like an injustice for all of us who still suffer.”
She’s right, in a way. Mercy is often at odds with justice. Justice means each person receiving their due; mercy means withholding a merited punishment—one can’t exactly have mercy on someone who has done no wrong, as that would be simply giving them their due. Mercy can be right or wrong, but in theory as well as in practice, it isn’t especially interested in being fair; it registers as inegalitarian and arbitrary. Justice, in contrast, is partially defined by fairness. Biden’s latest efforts in this domain have therefore struck some as unjust.
But it’s also the case that a more capacious understanding of justice sometimes requires mercy. That is why Biden should heed another call for clemency—this time commuting the death sentences of all 40 people on federal death row to life sentences instead. That, in my view, would serve to correct unfairness in the capital-punishment regime. Justice here demands something beyond simple fairness; it also asks for mercy to perfect its completion. Even if these sentences are in some sense appropriate, as many argue, mercy serves a more profound justice than the kind meted out by simple deserts.
[Elizabeth Bruenig: Any parent would have done the same]
Last week, the ACLU released a collection of dozens of letters from individuals, groups, and organizations all asking that Biden step in. Many of the letters pointed out that the death penalty is applied unfairly, especially where race and skin color are concerned. That capital punishment in America is a racist institution is indisputably true—the only question is what to do about it. Supporters of capital punishment generally speak of reforming death-penalty proceedings to create more equitable outcomes, but they never seem to propose laws aimed at doing so; even if they did, people already sentenced to death would still face execution. Clemency is made for just this sort of situation, wherein existing law has no other remedy for unfairness in the judicial process. In that sense, mercy can act in service of justice, rather than against it.
It’s also the case that there is more to justice than fairness, even by Joe Biden’s own lights. A letter sent by the Catholic Mobilizing Network asked Biden to take to heart Pope Francis’s calls for “forgiveness, reconciliation, and an end to every form of death penalty,” and “to act in the spirit of mercy and the kind of justice that upholds the dignity of all life, no matter the harm one has caused or suffered.” This kind of justice places paramount value on human life with fairness as a subordinate but influential good. It reckons what is due to a person differently than more narrow notions of justice.
American society tends to favor swift and harsh punishments; it recoils from mercy. Our problem is not and has never been too much mercy, but rather too little. Clemency is an opportunity to correct for this militant and vengeful tendency.
None of this portends a favorable response from the public were Biden to take this step; in fact, these commutations would almost guarantee the opposite, as federal death row includes Dylann Roof, the gunman responsible for murdering nine Black churchgoers studying the Bible in the 2015 shooting at Mother Emanuel AME in Charleston, South Carolina; Dzhokhar Tsarnaev, one of the Boston Marathon attackers whose pressure-cooker bombs took the lives of three and injured 281; and Robert Bowers, who murdered 11 people during morning services at the Tree of Life synagogue in 2018 in Pittsburgh. The rest of the list comprises people convicted of less infamous crimes (several, for instance, murdered prison guards) but who are still guilty of terrible things—worse than anything done by anyone Biden has pardoned so far. Clemency in these 40 cases would entitle Biden to the legacy of a true humanitarian, but could equally damn him to infamy as a feckless bleeding heart who gave Republicans a parting gift on his way out the door. Mercy is something done not for oneself, but for other people. And if Biden’s clemency won’t ever be applauded in history, then it will be in eternity.
