Joe Biden's Death Row Commutations and the Pardon Power
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From the opinion pages of the Wall Street Journal, this is Potomac Watch. President Biden commutes the sentences of almost all federal inmates on death row. But is this an appropriate use of the presidential pardon power? Could it add to the arguments for a constitutional amendment to rein that authority in while

Welcome, I'm Kyle Peterson with The Wall Street Journal. We're joined today by my colleagues, columnist Bill McGurn and editorial board member Mene Ukebarua. On Monday, December 23rd, Christmas Eve Eve, President Biden and his White House put out the following statement. Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole.

These commutations are consistent with the moratorium my administration has imposed on federal executions in cases other than terrorism and hate-motivated mass murder.

The president went on to condemn these crimes, but said that I'm more convinced than ever that we must stop the use of the death penalty at the federal level in good conscience. I cannot stand back and let a new administration resume executions that I halted. Bill, what do you make of this? And notable that the president is nodding explicitly to the handover of power here coming on January 20th.

saying that he has the power now to halt federal executions, but he wants to make sure that they don't go through after he leaves office. Yeah, I mean, it's wrong on so many levels. And the statement you just read indicates that. I myself am a big supporter of the pardon power, and I'm a big supporter of how it's written. It's one of the most expansive powers the president has. There's no limits on it as far as I can say. So,

So it really is the limiting thing has to be really up to the president itself. And it can be abused. I think this was very abusive. Most people are focusing on how those on death row, the 37, whose sentences were commuted, how they didn't deserve it. You know, the murders were particularly heinous or brutal.

There doesn't seem to be a mitigating factor, except President Biden doesn't like the death penalty. To my mind, the worst part about this is the president substituting the pardon power for policy. If he doesn't want the death penalty, he should campaign on it.

pass a law banning it and so forth and get rid of it honestly. The pardon power is really meant to judge cases individually. If someone came and they did something bad, even murder, but they turned their lives around or something, there's mitigating circumstances why they deserve to have those sentences commuted.

that's understandable. But to do it as a Princeville because I don't like the death penalty is a really arrogant approach to American justice. And it's further inconsistent because he only did 37. There were 40. The other three he let stand. Look,

The case against the death penalty, which I do not support, is very strong. It's very powerful. It says, no matter what you may have done, the state should not have the right to take your life. They can lock you up forever, but the state should not have the right to take your life forever. And I think that's a powerful argument. But when you don't commute the sentences,

for the three, you negate that argument. You know, it's just what's convenient for President Biden. I think it's very dishonest.

very arrogant toward the justice system, upsets a lot of the families of the victims. And it probably will, as you say, encourage rethinking the pardon, which I think would be a mistake. Mone, what are your thoughts? I guess I tend to agree with Bill on a lot of what he said, but to pick out one thing, this focus on using the pardon power as a matter of policy, because remember the president's job

His oath is to faithfully carry out the laws passed by the people's representatives in Congress. And here we have a situation where it is not an individual analysis of these cases saying that justice was not served in this case for one reason or another. It's a matter of a disagreement of policy.

And you can think of other examples where a president might be able to do that, saying, I don't think that this should be a crime. So I'm going to pardon everybody who has been convicted of it. Or I think young people's brains are still developing. And so I don't think anybody under the age of 26, let's say, should be sentenced to life imprisonment because I think that that is closing off opportunities for rehabilitation. And so I'm going to pardon anybody, commute any sentences that are life sentences given to people under that age.

And it strikes me that that would be an aggrandizing of the president's power, taking the power to write the criminal laws away from the place where it's supposed to be vested, which is in Congress. Right. I think that the decision by President Biden to commute the sentences of these 37 death row inmates

is representative of the kind of executive action that we've seen from both parties over the course of the past decade or more, in the sense that you have...

of basically acceptance of the fact that the legislative process is dead for anything other than big spending packages. And whenever they want to get policy changes through, they'd want to change the way that the federal government acts with regard to some of these big political or cultural questions. They try to act through the unitary power of the executive as much as possible.

As Bill said, this is one area where the Constitution explicitly grants the president almost unchecked power to do it. So as opposed to things that President Biden has done on student loans or other controversial actions he's taken, there isn't any recourse in Congress or in the courts to rein him in. He does have the power to do what he did. But I do think it's worth remembering that

President Biden ran on ending the federal death penalty as a matter of policy. This is something that he said when he was asked about it on the campaign trail when he was running for president in 2020. And I think that as soon as he was elected into office, he realized the political impossibility and the political difficulty of actually building a consensus to do that because the death penalty does require

retain majority support in this country. So instead, what he did was have his Justice Department under Attorney General Merrick Garland issue a moratorium on death sentences. So in new prosecutions, they're no longer seeking the death penalty for anyone who faces federal charges. And they also

agreed to halt executions for people who are already on death row in federal prisons. But Biden was not satisfied to remain there. And as you mentioned at the top of the show, he wanted to prevent President Trump from reinstating the death penalty for those death row inmates. And so I do think that

He was within his rights as the president to issue these commutations, but it does just show another bleak example of the inability to actually work through the political process, try to build consensus for restricting the death penalty if he thinks that's actually the right thing to do. Bill, the three that President Biden left remaining on death row are Robert Bowers,

who was the mass shooting perpetrator at the Tree of Life Synagogue in Pittsburgh, Dylan Roof, the mass shooter at the Mother Emanuel AME Church, and Dzhokhar Tsarnaev, who was convicted of the Boston Marathon bombing. And to your point about leaving them out, it is a bit odd because some of these other people are

who he did commute sentences for include serial murderers, including a guy who assaulted and stabbed to death a nine-year-old and an eight-year-old in the Chicago suburbs in 2005. And so it is a little bit odd that

What Biden's explanation that I read previously was he had taken the death penalty off the table in cases other than terrorism and hate-motivated mass murder. But what are the parents of those eight, nine-year-olds supposed to think? That because the perpetrator in that case killed them, just he happened to be there? That not because they were a certain race or a certain ethnicity or a certain religion? I mean, that is a little bit cold comfort, I'm sure, to them.

And it does suggest to me that Biden is not drawing a line based on principle here. He's just leaving out these three because commuting those death sentences would probably be so deeply unpopular with the public that he didn't want to do it.

Yeah, exactly. I mean, look, Joe Biden has never in his whole career, including the Senate, distinguished himself for a willingness to stand on principle. He has cut his conscience to where his party is going at any moment in the 90s, all for locking up criminals, because that was a flavor of the month. And today is again. So he's flip flop on so many things.

You point to it, these three that were still sentenced to death, whose sentences remain intact. Again, it doesn't fly with the argument. The argument against the death penalty is not that the people haven't committed the crime or some doubt about them. It's that no matter how heinous or how disgusting the

a crime may be, a human being's worth is such that it is wrong for the state to take it. There are other ways to punish the individual. So when you say, well, that principle holds for 37 out of 40 people, you get the contradictions that you just identified. I think it just adds to Biden's expediency. I don't know if you can identify one principle that

that he stood up for his whole life, including when it was unpopular. He went his finger to the winds. He's already in trouble on the pardon for pardoning Hunter against what he said in the summer. And I think it's just another example of Biden changing his mind and preening when it was expediency. If he had guts...

If he had guts, he would have pardoned those three along with it based on the reasoning I just said, that the state should not be in the business of taking life because human life is sacred. But he doesn't have that principle. Hang tight. We'll be right back in a moment.

Welcome back. Another argument for the death penalty, Manay, that I've heard in the wake of these pardons is that it provides deterrence against violence in prisons for people who are already serving life sentences. And one of the people getting a commutation from Biden is Anthony Battle. In 1994, while he was serving a life sentence for killing his wife,

He allegedly murdered a prison guard with a hammer in the prison there. And it does raise questions of if people are already serving a life sentence, what is the deterrent that the government, that the state can provide against violence?

in situations like that for people who already think I'm stuck here until I die anyway. Notable to some of the response on the right, this is the statement from President Trump, President-elect Trump. As soon as I am inaugurated, I will direct the Justice Department to vigorously pursue the death penalty to protect American families and children from violent rapists, murderers, and monsters. We will be a nation of law and order again. And there's some public polling to suggest

Right.

that a majority of the public supports the death penalty, but those numbers seem to have dropped a little bit over time. So the Gallup figure, are you in favor of the death penalty for a person convicted of murder? 53% this year said yes, 43% said no, but that's down from a high of about 80% in favor in 1994 compared to less than 20% against the death penalty. So those figures do seem to have moved over time.

Probably as a result of fallen crime, though I'm sure it also depends on how you ask the question. Again, that question was, are you in favor of the death penalty for a person convicted of murder? If you ask specifically about people like these mass shooters, Timothy McVeigh, situations like that, I assume you would get higher figures than that.

Yeah, I think that what you said right at the end nails exactly how the American people have thought about this question in that there is broad support for the idea that life in prison can be a suitable punishment for the majority of crimes, even very heinous crimes like murder. I think that that has definitely increased and the polls really reflect that. But I do still think that people think that there should be exceptions allowed, that it shouldn't be a

blanket ban on the death penalty because there are certain crimes that are so public and are so heinous and that affect the American people as a whole and not just individual victims that it should remain on the table. And in that sense, I do think that there is a certain amount of logic in the way that

President Biden chose to commute those sentences in excluding those three who were convicted of hate crimes or terrorism. I do think that you actually would see popular support for that distinction when a crime is very flagrant, when there's a large number of victims and when it seems to be motivated by particular hatreds as opposed to a random act of violence.

On the question of the deterrent effect of the death penalty for people who are already serving life in prison, I would be interested in seeing how frequent it is that people actually do commit those sorts of crimes punishable by death when they're already serving life. I'm sure that it happens now and then. Obviously, prisons are very dangerous places, but I do think that

That's a rare enough circumstance that the stakes of the question completely swamp it and that it's not the sort of thing that we would make a general policy based on. So I think that we're probably going to continue to see people try to push reform at the federal level and restrict the death penalty. And it's possible that support for that will continue to increase over time. But I don't think that we're ever going to get to a point where people support

Bill, I do wonder if this is going to feed into public conversations about constitutionally amending the presidential pardon power, because I think it's going to be a very, very important thing.

As you say, the Constitution gives the president very broad, unrestricted authority on pardons, commutations, clemency. And that's been abused for a long time now at the end of presidencies. Going back, you can start with Bill Clinton if you want to start there. But particularly, we've had some in a row here. We have President Biden's pardon of his son Hunter for anything that he did, any federal crime he may have committed over the course of 10 years.

Then President Biden clearing out federal death row. We have suggestions by President Trump that he's going to come into office and possibly do some pardons for rioters on January 6th who stormed the Capitol. We don't know how far he will go, whether he will include anybody who committed violence against the Capitol Police that day or not. He might not.

But it does seem like there is a new public interest in constitutional amendment, perhaps. And that's always a very, very high bar. It is hard intentionally to amend the United States Constitution. But if I understood you correctly earlier, you were suggesting that you still favor a pretty broad and unrestrained pardon power for the president. Do I have that right? And why do you feel that way?

Well, you do. Before I answer the constitutional question, I agree with Monet on the public support. One of the good things to come out of this is there'll be a debate on the death penalty because of Biden's pardons. And as I think he was intimating, there's a difference between abstractly saying, I'm against the death penalty, and

And reading these cases and the grisly murders that many of them committed and saying, I'm against it in this case. So we might actually get a decent public debate about the death penalty, which I think is good. It's an important issue.

Then to the constitutional question, I think it is definitely going to feed attempts to restrict and leaving apart whether they're hard. I mean, I think they should be hard. The Constitution is not to be trifled with lightly. And so there's a lot of burdens to overcome before you can alter it. But I don't think it's desirable for a couple of reasons. The main reason is the Constitution is the blueprint of freedom.

And it outlines minimal powers by the government. And a lot of the rest is left. It doesn't try to outline everything possible. And it leaves a lot for judgment. And if you're going to have freedom...

you have to allow for mistakes, maybe abuses of the freedom. It's kind of like raising your kids. They go out and when they're young adults, they make some dumb mistakes, but they kind of have to make those mistakes. I mean, you could coddle them and insulate them from everything, but I don't think you'd like the result. And I feel the same way about the Constitution. It should err on the side of liberty and

it's not going to destroy the republic as bad as Biden's pardons were. It's not going to destroy the republic. So I just don't favor tinkering with it. And I suspect the cure would be worse than the disease. Hang tight. We'll be right back after one more break. Don't forget, you can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker. Play the Opinion Potomac Watch podcast.

From the opinion pages of the Wall Street Journal, this is Potomac Watch. Welcome back. I tend to agree, depending on how the amendment would be structured, I tend to agree that the pardon power is something that belongs in the hands

of maybe one individual like the president. If you devolved it to some kind of committee or try to put rules and restrictions on how the president used the clemency power, I think you would just get it bogged down. I mean, it's the kind of thing that requires one person to look at the record of the case and make a judgment.

make a judgment call about whether some kind of commutation or pardon is warranted in each individual case. It's a hard kind of thing to bureaucratize, if I can put it that way. But, Manay, let me throw you this one idea, which is maybe the most intriguing idea that I've heard so far raised in this constitutional debate on the Violent Conspiracy Law blog over at Reason Magazine, and it's to ban...

lame duck pardons. That would be a pretty narrow constitutional amendment. It would say that the power to grant reprieves and pardons may not be exercised from one month prior to the time of the choosing of the presidential electors until the next presidential term begins.

So basically, a president would still have unrestrained pardon authority, just would not be able to exercise it from about the beginning of October until January 20th. And there is a certain amount of logic to that. We still have a pretty long period of presidential transition, even in an age where ballots can be counted pretty quickly.

quickly and winning candidates can make their way to Washington fast and make their appointments fast. We still have this pretty long lame duck period in American politics. And there is something that makes sense to me about leaving the pardon power in the hands of the president broadly.

but requiring it to be exercised at a time when the voters can make their judgments known and hold the occupant of the Oval Office politically accountable. That is what is so difficult, I think, about the current situation is because as bad as Democrats and President Biden fared in the recent 2024 November election, if he had pardoned his son Hunter before the voting in November, you can only imagine that that

That would have affected some people's judgments on Election Day in the ballot box. Right. I think that there's a huge swirl of reform proposals for the presidential pardon power, in part because of President Biden's decision to pardon Hunter, despite claiming repeatedly that he wouldn't. But then also because of President Trump suggesting that he is about to issue pardons for more than 1,000 people.

convicted January 6th rioters, much to the consternation of the left. And so you see this rare moment of bipartisan interest in restricting this power. I definitely do think that some of the proposals hold merit. I have to say, first of all, that Bill changed my mind live on the podcast a moment ago, previous to

this conversation that we're having now, I would have supported one idea, which was to restrict the president from being able to pardon family members. And that's something that a lot of conservatives have proposed in the wake of the Hunter pardon. But I do think that the freedom afforded to the president to be able to make those decisions should grant him the ability to pardon a family member who might have been unfairly convicted or there might be under

extenuating circumstances that only he is aware of. And that is a power that the American people confer on the president to execute at his discretion. So I do think that President Biden had reasons not to pardon Hunter, but I don't think that we should deprive him of the power to do so.

I do think that there are some of the reforms that are still promising and the lame duck limitation is one of them. I do think that the president should have to be held accountable for his party in the case of a president who is not seeking reelection should be held accountable for the decisions they make to pardon people. So I want to

limit it to circumstances where the American people will be able to weigh in relatively quickly if they do think that the president has abused that power. And the other reform that I would endorse is making sure that pardons are restricted to specific crimes rather than blanket. I think that

It doesn't make sense to have a president saying that any crimes that this person may have committed without specifying what those crimes are, are forgiven. They should have to say that this particular offense is being wiped out. And same thing for preemptive pardons. I don't think that it makes sense to have presidents be able to confer immunity on people for crimes that they haven't committed and give them carte blanche to go off and do something horrible that they otherwise might have been prevented from doing.

But I do still think that the freedom of the president to be able to make these decisions is an important one. Throughout the history of this country, we were probably restrained by our norms and the ways that presidents chose to execute or not execute this power. And unfortunately, we're in a political position where these norms have degraded. And so we have to think a lot more proactively about the possibility

limiting them because they're no longer limiting themselves. But I do still think that we shouldn't go too far and should still see the value in affording the president the power to make these kinds of decisions. Thank you, Manay and Bill. Thank you all for listening. You can email us at pwpodcast at wsj.com. If you like the show, please hit that subscribe button. And we'll be back next week with another edition of Potomac Watch.