As a candidate, Joe Biden said he would substantially reduce the federal prison population as president. Last week he commuted the sentences of 11 people who he said were serving unjustifiably harsh prison terms for drug offenses and also pardoned people convicted of certain marijuana charges. Still, the number of people in federal prison has grown during the Biden administration.
Despite historical bipartisan support for sentencing reform, Mr. Biden has failed to fully embrace the momentum of his two immediate predecessors, who made substantial efforts to tackle mass incarceration. Some have argued that his relative inaction on the issue may hurt him among key voting groups.
But it is not too late.
Ten years ago, Barack Obama began an ambitious program to reform the country’s criminal justice system and take on mass incarceration, offering clemency to people serving long sentences for nonviolent crimes who had demonstrated rehabilitation. Over 1,500 people were freed — many of whom would have died in prison otherwise.
And five years ago, Donald Trump took up that mantle and accelerated reform of federal sentencing laws by championing the First Step Act, which, as of January 2023, has resulted in the early release of nearly 30,000 people in prison, including many sentenced under what many lawmakers came to consider especially harsh laws.
The opportunity is ripe for Mr. Biden to act as well. And he can do so without negotiating with a fractious Congress and without following Mr. Obama’s politically fraught path of offering clemency, which invites the same arbitrariness and inequities that reformers are trying to correct.
Instead, Mr. Biden can chart his own course by taking advantage of a little-used law that allows prison officials to recommend to federal judges that they re-evaluate sentences of people for “extraordinary and compelling reasons.” This can include people who are facing long sentences and have already served many years behind bars, have shown their commitment to rehabilitation and are prepared for release.
This approach, which could be called administrative clemency, is fairer, more transparent, more comprehensive and less politically complicated than traditional clemency. It is in step with reforms percolating through state legislatures that empower law enforcement agencies and judges to revisit old, unnecessarily harsh prison sentences. It also encourages people in prison to work on themselves through education, vocational training, counseling and drug treatment.
Prison officials are ideally situated to make this evaluation. Prosecutors, judges, the police and even defense lawyers tend to move on to other cases and often do not keep tabs on people sent to prison who have been working to rehabilitate themselves and are hoping for some kind of reprieve. But prison officials and staff members work with them daily and follow and chart their progress.
The administrative clemency process empowers prison officials to identify suitable candidates for resentencing based on their behavior and rehabilitation. Those cases would be sent back to court, where a judge would make the final determination on whether a person’s sentence should be reduced.
Unlike clemency, this decision is made in open court, with arguments and evidence by prosecutors and defense lawyers. It also allows courts to consider and impose release plans that maximize public safety. Final determinations are made by federal judges with lifetime tenure who are distant from the politics that influence presidential-level decisions. In short, this process returns the case to where it belongs: in court, with all the legal protections, evidence and consideration criminal cases deserve.
While some people may be justifiably wary of investing so much power in prison officials, a similar process is working in California, which is infamous for having some of the country’s harshest sentencing laws and most overcrowded prisons, as well as what may be the nation’s most powerful prison guard lobby.
Over the past six years, under a program begun by Jerry Brown when he was governor, California state prison officials have recommended 2,200 people for sentencing reductions. Before any candidates are released, they undergo thorough vetting by prosecutors and defense lawyers, and a judge determines whether continued incarceration is no longer in the interest of justice.
There is little litigation because after a person is identified and endorsed by prison officials, it becomes clear that the sentence is unnecessarily long and counterproductive. California’s program makes use of what had been a largely dormant state statute similar to the federal law that Mr. Biden could employ.
Mr. Obama, who recognized that many criminal punishments were overly harsh, ineffective at maintaining public safety and infected by racial bias, argued in a Harvard Law Review article that presidents have an “obligation” to correct injustices baked into the county’s criminal legal system. “How we treat citizens who make mistakes (even serious mistakes), pay their debt to society and deserve a second chance reflects who we are as a people,” he wrote.
And Mr. Trump, in social media posts after Congress passed substantial changes to tough-on-crime laws in 2018, said that it was his job “to fight for all citizens, even those who have made mistakes” and added that the new law would “keep our communities safer, and provide hope and a second chance, to those who earn it.” Among other things, the changes reduced prison terms.
Administrative clemency, if the Biden administration pursues it, will not correct fundamental flaws in the criminal legal system. It will not directly address racism, mental illness and bad social science that can be corrected only through comprehensive reform. But it is something Mr. Biden can do to address thousands of unfair federal sentences without embroiling himself in the politics of clemency or legislation. And it’s something he can do today.