Attacks on Biden's CARES Act commutations are misguided, on many fronts

Like clockwork, any criticism of action is used by supporters of the status quo to derail efforts to fix our criminal legal system. Also, for paid subscribers: Closing my tabs.

Even the most narrow criticisms of efforts to address systemic problems in our criminal legal system are regularly used by supporters of the status quo to encourage and exacerbate the problems of our system of extreme overcriminalization.

That is what is happening currently, as the New York Post and others jump on any criticism of President Biden’s decision this past week to commute that sentences of 1,499 people who the White House explained “have been serving their sentences at home for at least one year under the COVID-era CARES Act.”

In a statement announcing the Oct. 12 clemency actions, Biden added, “These commutation recipients, who were placed on home confinement during the COVID pandemic, have successfully reintegrated into their families and communities and have shown that they deserve a second chance.”

In the days since, however, some have begun attacking Biden due to a very small handful of names on that 1,499-person list. The reason: They did things that people do not like. The Post has written at least three stories about the criticism.

The problems with this are many.

There are factual problems. Many of those criticizing the commutations don’t know that these people have not been in prison, let alone the specifics of the CARES Act program that allowed them to serve their sentence on home confinement. Despite the White House making that clear, criticism — and some coverage — has shown a disconnect with those realities.

There are functional problems. As an administration official told Politico:

Those commutations were extended to people on Covid-related home confinement after federal authorities verified that their offenses were nonviolent and not a sex offense or terrorism related, the official said. They were also all considered a low risk for recidivism, had not engaged in any violent or gang-related activity while in prison and had been on good behavior for at least a year. None of the commutations granted were individual decisions, the official added, and none who met the criteria were excluded.

Josh Hoe, a policy manager at Dream.org who is himself formerly incarcerated, wrote an extensive thread on Saturday explaining how not understanding the factual and functional circumstances here make it far easier to criticize the action. At one point, he noted:

CARES Act Home confinement is one of the most successful reentry programs in history. The people who were released to home confinement under this program have a recidivism rate of under 2% the general recidivism rate for people released from federal prison is generally 43%.

Criticism of the commutation of the sentence of Michael Conahan, the ex-judge sent to prison in 2011 for his role in a notorious “kids-for-cash” scandal, has prompted some of the most blowback. He has already served more than 13 years of his 17-year sentence, has been on home confinement since 2020, and would likely have been released by 2026.

When Pennsylvania Gov. Josh Shapiro criticized the inclusion of Conahan on the commutations, he said that Biden’s decision was “absolutely wrong” and suggested that the Biden was wrong to enact mass-commutations without considering the facts of each case.

“It is an absolute power, and it is a power that should be used incredibly carefully,” Shapiro said, noting his power to do so in Pennsylvania. “I weigh the merits of the case. I weigh what occurred in the court proceedings. I think about public safety and victims and all of those issues factor into my decision.“

Shapiro is telling us something important here. He is saying — whether he uses the words or not — that a successful program of home confinement release should not be used to create a category of people for whom commutations are appropriate. Even further, he is — essentially — saying that he does not believe in any mass-commutation decision.

There is a problem with media coverage. Shapiro’s criticism also highlighted this. When Politico took quotes from the Pennsylvania Capital-Star’s story, they shortened it and, in doing so, changed — and confused — the meaning.

After those initial quotes from Shapiro, the Capital-Star story continued:

Shapiro added Friday that he thought the 17-year sentence for Conahan was “too light.”

“The fact that he’s been allowed out over the last years because of COVID, was on house arrest and now has been granted clemency, I think, is absolutely wrong,” Shapiro said. “He should have been in prison for at least the 17 years that he was sentenced to by a jury of his peers. He deserves to be behind bars, not walking as a free man.”

That, again, tells us more about Shapiro — he thought the underlying sentence was too short and opposed at least some aspects of the CARES Act home confinement program itself — but, let’s see what Politico did with all of that:

Politico conflated the two parts of Shapiro’s comments — the criticism of the commutation and criticism of the underlying sentence and CARES Act program — leaving people with the suggestion that, had Biden not commuted his sentence, Conahan would “be behind bars.” Although the article later cites an administration official explaining that that is not so as to Conahan, it’s weird that the unnamed source is used to do that while a conflated on-the-record quote suggests otherwise.

The criticism is missing the point of clemency — and some of the critics’ comments suggest they oppose that point. Clemency is an important and underutilized power. Shapiro’s comments, in particular, are a reminder that he is more retrograde on criminal justice issues than his demeanor suggests.

Clemency that does not, at times, include a mass-clemency process including all who meet certain criteria is not going to do enough to address overcriminalization. Simply put, there are going to be some people who you personally might not want to have gotten clemency any time that a leader takes a necessary mass-clemency action. But, without them, governors and presidents’ actions simply won’t always get the job done.

Critics are also missing the point of this specific mass-clemency effort. It was necessary because it’s possible that Donald Trump and his Justice Department might have tried to bring all 1,499 of those people back to prison after Trump retakes office. We know that because the Justice Department in the first Trump administration tried to require just that. Instead, the Justice Department under the Biden administration faced pressure not to do so and reversed course, allowing the successful home confinement program to continue.

Moving out from this past week, many critics are missing the bigger picture. No one has put it better than John Pfaff, the Fordham Law professor, who on Saturday night wrote:

One bad commutation produces ten thousand times the outrage of thousands of unnecessary incarcerations.

If you are chiming in only now, ask yourself why you are demanding perfection here, but not on those we lock up in our sadistic prisons?

Why does mercy anger you but cruelty does not?

One final note: As with much in politics, political blowback is often aimed at changing future behavior. While not all of the critics of individual commutations have this in mind, the larger amplification of these critics by the New York Post and others are almost surely in part an effort to influence Biden in his final weeks in office — to push him not to take further aggressive clemency actions.

Biden should not fall for their campaign. He should continue — as he pledged — to grant further clemency “to advance equal justice under the law, promote public safety, support rehabilitation and reentry, and provide meaningful second chances,“ including by commuting the sentences of those on federal death row.

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