President Joe Biden has pardoned two turkeys in an annual spectacle wherein the nation's chief executive whimsically exercises his constitutional power of clemency. It's a tradition that has long had endearing aspects, including reliably corny jokes on the menu, and one that is especially important to Minnesota, where 600 turkey farms make us the largest producer of turkeys in the nation.
This year, though, those of us who work in the field of clemency are left with a bitter taste in our mouths. Biden's pardon of those turkeys represents the first time he has shown any interest at all in clemency.
The problem isn't just that Biden isn't granting any clemency, it's that he isn't denying any, either.
Following the lead of his predecessor, former President Donald Trump, Biden is just letting requests sit. While some cases have been closed administratively (largely where people are simply not eligible), not a single case has been resolved up or down through presidential action.
While this, sadly, does not distinguish Biden from either Trump or President Barack Obama in his first term, Biden is working in a different context. Right now, there are not one but two genuine crises unfolding in federal clemency.
The first is the historic backlog of unresolved petitions that has built up. That stack now contains almost 18,000 petitions (in contrast, the backlog at the start of the Obama administration was a little over 2,000). Many of those petitions have sat for five or six years without action. Too many involve long sentences for marijuana offenses — cases that should be prioritized now that marijuana is legal in many states.
Certainly, many of the pending petitions won't be and shouldn't be granted (as a former federal prosecutor, I have no doubt that some people need to be in prison), but others have great merit. I know that because with my students in a federal commutations clinic at St. Thomas Law School, I have helped prepare a small fraction of the files in that giant pile.
I know that some of those petitioners are people who got unfairly long sentences for relatively minor crimes, who have done remarkable things while incarcerated, and who have entire communities waiting to support them when they re-enter society. We have told their stories, and I have sent my students into the prisons to meet them and hear those stories. Watching those stories of redemption go unread has been its own kind of sadness.
A second crisis is rooted in our own recent history. When COVID-19 hit the nation, the Trump administration and Congress responded with the CARES Act, a $2 trillion stimulus package signed by Trump in March of 2020. One almost unnoticed provision of that law allowed the Department of Justice, through its Bureau of Prisons, to allow some of those behind bars to serve their time on home confinement during the duration of the pandemic. Those with six months left on their sentence already were eligible to apply for a transition to home confinement, but the CARES Act expanded eligibility to people with many more years to go.
Now there is a quandary: When the pandemic finally ends, should those thousands of people who were vetted and found safe to live in the community be returned to prison? Making the question sharper is the reality that the home confinement cohort has succeeded, with only a handful of people violating the terms of home confinement.
To keep those people from being returned to prison, President Biden's best tool is clemency, but he seems reluctant to use it beyond just a fraction of that group — and to date, nothing has happened at all beyond an announcement of the limits of any action.
It's worth noting that our state process is nearly as bad (though at least we are spared the indignity of a turkey pardon). Far more pardon grants are issued in states like South Carolina and Oklahoma than here in Minnesota, because of an unwieldy and unproductive process. It is quite dramatic though — and if you want to watch it in action you can do so on Nov. 22, via a video link on the Minnesota Board of Pardons website under "Next Meeting."
The Minnesota system at least regularly considers clemency, something the federal system does not demand or deliver.
Many people give a pass to Biden — as they did to Obama and George W. Bush in their first terms — under the mistaken belief that there is some kind of grand tradition in which presidents traditionally wait until the end of their final term to use clemency at all. The truth is that this "grand tradition" began with Bill Clinton. Before him, presidents used clemency in a much more consistent way throughout their terms.
For example, Ronald Reagan granted 86 clemency petitions in his first full fiscal year in office, which was more than twice as many as he granted in his last full year (38). The Clinton precedent hardly excuses Biden's inaction.
It's profoundly odd to have an oft-abused but important constitutional power played for laughs. And this year, it's even less funny than usual.
Mark Osler is the Robert and Marion Short Distinguished Professor of Law at the University of St. Thomas Law School in Minneapolis.