There are more than turkeys being pardoned this holiday season. Joe Biden made news by announcing a presidential pardon for his son Hunter Biden who faced two separate federal criminal charges. The pardon means Hunter Biden will not be sentenced for his crimes, and it eliminates any chance that he will be sent to prison. The judges overseeing his cases will likely cancel the sentencing hearings, which were slated for December 12 in the gun case and December 16 in the tax case.
Many are criticizing Biden for the pardon after he made promises to not pardon Hunter. Biden felt justified in issuing the pardon stating that he felt the prosecution of his son was politically motivated. Meanwhile, President-elect Trump has his own list of pardons he is ready to hand out on day one, namely many of those involved in the January 6th storming of the capital after he lost the previous election. No matter the reasons, it is good that pardons are being discussed.
Pardons have gone a long way toward healing the country. President Andrew Johnson pardoned President of the Confederacy Jefferson Davis on Christmas Day, 1868, as part of an amnesty proclamation that granted pardons to all former Confederates. However, for many, pardons or commutations of sentences come years after serving time in prison and hardly have the effect of forgiveness when a debt to society has already been paid. Now, both Biden and Trump have acknowledged that our Department of Justice has put people in prison for either far too long or have wrongly prosecuted them. The pardon process should be transparent enough for us to look at the reasons the pardons were given so we can use that information to evaluate future prosecutions and how laws are enforced. It should also be used to show people who have made a mistake that there is a path to reconciliation.
Biden will likely look for a larger group to pardon that will offset the political missteps he made by promising earlier to not pardon his son. That group should start with the nearly 1,500 prisoners who are currently on home confinement under the CARES Act. During the Pandemic, the Bureau of Prisons (BOP) moved over 36,000 people to home confinement under the CARES Act. The CARES Act expanded the amount of time individuals could be placed in home confinement during the pandemic. Some of these people have more than a decade remaining on their sentence. The program was a huge success in that most all of these prisoners successfully completed their sentence without incident. It demonstrated that someone can be incarcerated for crimes committed while safely doing so while living in the community. Retired Bureau of Prisons BOP Acting Director Hugh Hurwitz alsowrote a piece for The Hill talking about pardons and the timeliness of granting them between Biden and Trump.
Trump’s Office of Legal Counsel called for the return of CARES Act prisoners then Biden’s team said that they could stay on home confinement. Many of these prisoners have now lived for years with the concern they could return to prison and many have started their lives over since going home. A pardon (commutation) by Biden would not only secure freedom for those who have proven that they have moved on beyond their mistake but would also assure the Trump does not send them back to prison. An additional benefit of a pardon/commutation would be that it would free up much needed halfway house space (halfway houses monitor those on home confinement). If 1,500 prisoners were suddenly not being monitored by halfway houses (the group responsible for monitoring those on home confinement) it would free up nearly 20% of the halfway house capacity. This means 1,500 more people could be moved to the community to finish their sentence.
For Trump, he has been on record saying that he will pardon the January 6 rioters, many of whom have completed their sentences. In fact, most pardons are given to those who have completed their sentences, not those who are in prison or have not even been sentenced (reference Hunter Biden).
The pardon office receives, reviews, and investigates applications for executive clemency and provides advice and recommendations to the President. The Office is led by the Pardon Attorney, Elizabeth G. Oyer, and is supported by approximately 40 attorney and non-attorney staff. According to is website the pardon office is nonpolitical and operates under the general oversight of the Deputy Attorney General. Its mission got a lot of attention under the Barack Obama administration when clemency was to encouraged by the president. The Office also prepares the documents the president signs when granting clemency and notifies applicants when the president has made a decision to grant or deny clemency. It has not been reported how much or if a review of Hunter Biden’s case was made by the pardon office.
Biden called for Attorney General Merrick Garland to look at certain crimes, particularly marijuana possession, for a pardon, but that has not materialized into a large number. Since taking office, Biden has only pardoned just 26 people, not many considering he is only a one-term president and pardons are more likely, less controversial, at the end of a second term. Trump pardoned 237 people during his four years in office, while Obama pardoned 1,927 over two terms. Biden can do a lot with pardons to take away from the bias of pardoning his own son by granting a larger number of pardons to those that have the appearance of fairness.
Trump can also grant his pardons/commutations both going into office and leaving. His administration will be particularly keen on reviewing cases of aggressive prosecutions, something that he spoke of quite often as a candidate. Pardons during the opening days of an administration are almost unheard of but Trump has a way of setting his own trends.
A review of the prosecutions that have taken place over the past few decades is worth a look. Some of the same crimes that Hunter Biden committed have landed people in prison for many years. Take the tax case of Sreedhar Potarazu, a doctor who got into tax problems and was sentenced to 10 years in prison and he’s completed his time. The same goes with the case of Kay Rogers, who currently has a pending pardon application. Rogers, a former Butler county Ohio Auditor, who went to prison for a few years for a bank loan that the bank says she does not even owe. Rogers and other women who believe they were overcharged in their crimes have made repeated requests to have their cases reviewed.
Both presidents can alter the way the Department of Justice brings criminal cases by showing which cases they believe are over-reaching, a definition that Trump is going to try to define in his administration. For Biden, he needs cover for his decision to pardon his son which both Republicans and Democrats have condemned. It could make for a perfect season of revamping the pardon office and giving many more people a second chance at life.
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