President Joe Biden’s son, Hunter, received a rare gift of mercy on Sunday, as the president issued “a full and unconditional pardon” for any federal offenses Hunter may have committed during the past decade. The decision was prompted by Hunter Biden’s recent convictions for gun crimes and tax evasion, which came on the heels of years of relentless Republican-led investigations into all sorts of alleged illegal conduct and frothing Fox News coverage of Hunter’s every act. “Raw politics has infected this process, and it led to a miscarriage of justice,” President Biden said in a statement.
The Constitution confers broad authority on presidents to legally absolve people of guilt for federal crimes. But regrettably, myriad injustices that don’t touch the president’s family have all but escaped his attention. Donald Trump issued 237 pardons and commutations during his four-year term, and over eight years, Barack Obama granted 1,927. To date, Biden has pardoned 26, including his son, and issued 136 commutations. He has also granted categorical clemency to people convicted of various weed offenses, as well as LGBTQ servicemembers who were court-martialed under now-repealed laws that criminalized same-sex intimacy.
Presidents admittedly tend to save their compassion for the end of their terms; Obama had less than 24 hours left in the White House, for instance, when he commuted the sentences of 330 people convicted of federal drug crimes, breaking the record for the largest single-day use of presidential clemency powers that he’d set earlier that week. But typical though this timetable may be, it also extends suffering. As an added indignity, Biden found time to grant two “pardons” last week to a pair of 40-pound turkeys named Peach and Blossom, bringing Biden’s spared turkey total to eight.
(Photo by ROBERTO SCHMIDT/AFP via Getty Images)
Hunter Biden’s pardon has generated renewed public attention on the other, non-fowl lives that President Biden can save. There are currently 40 men on federal death row, more than half of whom are people of color, even though people of color make up less than a third of the U.S. population. Biden is the only person who can stop them from being killed with the simple stroke of a pen, so activists and lawmakers alike are urging him to use his clemency powers to commute all federal death sentences to life in prison.
Biden has long said that he opposes the death penalty, and on the campaign trail, he pledged to work with lawmakers to end it. But even if this was a long shot in a divided Congress, clemency is an executive power; Biden can save the lives of the 40 men on death row without any help. The government has not carried out any executions since the Justice Department issued a moratorium in 2021. The Biden Administration has acted alone to prevent government killings before. Clemency is an easy and obvious way to prevent government killings again.
Neither time nor the Supreme Court is on Biden’s side. Starting in the early 2000s, the federal government was involved in extensive litigation about whether its lethal injection cocktail violated the Eighth Amendment’s prohibition on cruel and usual prohibition by causing “unnecessary and savage pain.” Amid these legal challenges, the Bureau of Prisons and the Department of Justice both revised their execution protocols, resulting in a de facto hiatus in the federal execution schedule lasting from March 2003 to July 2020. But as Trump approached the end of his term, he rushed to kill as many people as possible, and the Court to which he appointed three justices assisted the acceleration.
Just five days before Biden’s inauguration, Justice Sonia Sotomayor dissented from a decision that allowed the government to kill a man named Dustin Riggs that same night. Sotomayor put the death toll and the Court’s complicity in historical context. “The Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades,” she wrote. Dustin, who maintained his innocence until his death, was executed around 1:30 AM on January 16. Biden took his oath around noon on January 20.
Throughout the 2024 presidential campaign, Trump called for more executions and for more categories of crimes to be punishable by death. The combined bloodlust of a second Trump White House and far-right Supreme Court will soon allow state killings to surge once again. The 40 people currently on federal death row need not be among the dead.
(Photo by RINGO CHIU/AFP via Getty Images)
In a series of landmark decisions earlier this century, the Supreme Court took a few steps back from capital punishment—small steps, to be clear, but important ones all the same. In 2002, the Court ruled that executing people with intellectual disabilities violates the Constitution’s prohibition on cruel and unusual punishment. In 2005, the Court declared it unconstitutional to execute someone for a crime they committed as a minor. And in 2015, the Court held that states could not rely on an IQ test alone to determine whether someone is intellectually disabled, simply considering everyone who scores above a certain threshold eligible for the death penalty.
This retreat was all too brief. In 2019, Justice Neil Gorsuch wrote in a majority opinion that “the Eighth Amendment does not guarantee a prisoner a painless death.” Justice Clarence Thomas echoed that sentiment a few years later when he and Justice Samuel Alito dissented from a decision requiring Alabama to kill a man another way, after he survived a horrifying 4-hour-long botched execution. And when Trump began his execution extravaganza in 2020, the Court aggressively used its shadow docket to summarily deny pleas for relief from people facing execution. Perversely, the Court even lifted lower court decisions that delayed executions, effectively ordering that the killing show must go on.
The death penalty remains, as it has always been, a racist barbarity irredeemably riddled with biases and errors. And when Trump returns to the White House in January, he will have the aid of a Supreme Court with an astounding capacity for cruelty. Biden must pardon the people on federal death row now, or else his moratorium would have accomplished nothing more than swapping out executioners.
