As Second Chance Month came to a close, President Biden announced he was commuting the sentences of thirty-one people on home confinement after being convicted of various federal drug offenses. This announcement coincided with the administration’s release of an Alternatives, Rehabilitation, and Reentry Strategic Plan aimed at reducing recidivism by helping the formerly incarcerated access health care, housing, education, employment, and more. 

The administration has indicated that these clemency grants, especially when considered in conjunction with the 6,500 pardons issued to people with federal marijuana offenses last October, are a testament to the President’s commitment to criminal justice reform. While this is certainly progress, the Biden Administration could and should be much bolder in leveraging the President’s clemency power to shore up his commitment to advancing substantive criminal justice reforms. 

The framers conceived of the clemency power as a mechanism for addressing injustices and systemic shortcomings in America’s criminal justice system, and were hopeful future presidents would use it to intervene when the country’s legal system failed to deliver a morally tenable result. And for centuries, that’s exactly what happened. For most of modern American history, presidents from Jackson to Carter were unstinting in their use of their clemency power. They understood their actions not only as a way to remedy overly harsh sentences, but also to help restore public faith in the justice system. These clemency grants were issued at a steady cadence and often bestowed upon individuals whose punishments were considered by the American public to be disproportionate to the gravity of the crime. 

Unfortunately, the use of clemency has been severely diminished over the past few decades. This dramatic change came as a rash of “tough-on-crime” politicians and policies ascended into higher office in the 1980s, and resulted in a precipitous drop in the number of pardons and commutations presidents were willing to issue. 

While the President’s recent issuance of pardons to those with marijuana possession records is a welcome move, it’s important to note that it didn’t result in a single individual being released from prison. It also doesn’t indicate a return to a more traditional and expansive use of the presidential clemency power. As President Biden considers using this tool again before the next election, he should recognize his clemency power has the potential to effectuate much more meaningful reform than it has during the first half of his term. For example, President Biden could use his clemency power to release the nearly 3,000 people serving time in federal prison for marijuana offenses (despite the fact that the majority of Americans live in a jurisdiction where they can legally obtain state-regulated cannabis products). 

Bold action like this would of course bring welcome relief to this deserving class of people. But the benefits of a clemency grant like this would extend beyond the immediate release of incarcerated individuals. As the Framers often made clear, clemency can also serve as a powerful symbol of the values that we hold as a society. A “categorical cannabis commutation” would serve as an acknowledgment of the systemic injustices that have plagued our nation, and help increase Americans’ waning confidence in a criminal justice system that puts certain (disproportionately Black, brown, and low-income) people in jail for cannabis at the very same time it allows others (disproportionately white, wealthy and well-connected) to legally profit from its sale. 

Releasing those incarcerated for federal marijuana offenses would be a testament to President Biden’s commitment to a fair and equitable society, and would help to address the racial disparities that have characterized our criminal justice system for far too long. By using his clemency power in this way, President Biden will demonstrate a commitment to justice and bring us closer to a society that lives up to our shared values. 

BIOGRAPHIES:

Sarah Gersten is the Executive Director and General Counsel for the Last Prisoner Project. Along with leading the organization's direct legal service programs, Sarah also works to ensure that LPP centers a model of innovative solutions for systems change that prioritizes the voices and perspectives of impacted individuals. Throughout her career Sarah has worked at the intersection of cannabis legalization and criminal justice reform. After working as an attorney at a congressional agency where she focused on legislative policy, Sarah co-founded a cannabis-centric law firm where she led the firm's pro bono initiative, taking on expungement and record-sealing cases. Sarah went on to co-found and serve as CEO for a legal tech startup that offers affordable legal solutions for small cannabis business owners, as well as free expungement services. Sarah is a member of the National Cannabis Bar Association, the NORML Legal Committee, and the National Lawyers Guild. She received her BA from Tulane University and her JD from Harvard Law School.

Lisa Monet Wayne has been an attorney in private practice in both state and federal courts around the country. She represents individuals and corporations in both the investigation phase and criminally accused capacity. Previously, Wayne was a Colorado State Public Defender for 13 years where she served as office head, training director, and senior trial attorney. She lectures nationally with NACDL, National Criminal Defense College, National Institute of Trial Advocates, American Bar Association, Federal Defender Training Services, State Bar Associations, numerous Federal and State Public Defender Organizations, and many other organizations. Wayne has served as an adjunct law professor at the University of Colorado where she taught trial advocacy for 22 years, she serves on faculty at the Trial Practice Institute at Harvard Law School, The National Criminal Defense College, and Cardoza Law School. Ms. Wayne is an advocate in all venues of the media addressing important issues confronting the criminally accused. She is a legal analyst for numerous media outlets including, ABC, CBS, CNN, Al Jazeera, and World Radio regarding high-profile cases and legal issues around the country.  She is frequently quoted in print media such as the Wall Street Journal, The Guardian, New York Times, Washington Post, Detroit Free Press, and the AP wire. Ms. Wayne testified before the United States Sentencing Commission in 2012 against the implementation of the Federal Sentencing Guidelines as mandatory.  In 2005, Wayne was honored with the Robert J. Heeney Award, NACDL’s most prestigious recognition. Wayne is the Past President of NACDL, Past President of the National Foundation of Criminal Justice, and serves on numerous committees around criminal justice issues. Wayne is a member of the Colorado Supreme Court Standing Committee on Ethics. She is also a member of The Colorado Sentencing Reform Task Force. Wayne is a law graduate of Pepperdine University Law School and an undergraduate degree in Psychology from the University of Colorado.