As 2022 drew to a close, President Joe Biden issued pardons to six people, prompting pundits and the media to collectively shrug. The country’s leading experts on pardons have criticized the president for his “cowardice” by granting mercy to only a handful of the most 130,000 federal prisoners. It’s time for Biden to respond to criticism of him by making a real dent in the country’s growing prison population and foreshadowing the kinds of tough decisions it will take to end mass incarceration.

You can do this by granting clemency to thousands of nonviolent federal prisoners, including some of those convicted in the January 6, 2021 attack on the Capitol.

By commuting the sentences of some of the nonviolent protesters on January 6, Biden would corner his main critic, Donald Trump.

As many reflect on the atrocity that unfolded in Washington two years ago today and how it struck at the core of our democracy, that may be an absurd thought. To be very clear, this is not to say that the people who were trying to stop the legal transfer of presidential power don’t deserve to be punished. Like many of the others who would receive clemency, they do.

But one of the challenges of reducing the prison population will always be that a lot of people in the US want to see a lot of people locked up. We just differ on which people. Substantially reduce our population deprived of liberty (people in prison and jail), which amounts to almost 2 millions and is among the highest in the world, the country must accept that an end to mass incarceration would mean less punishment, even for people who (we think) deserve it and even for those who commit serious crimes.

Although there have been some advances, such as nomination of former public defenders to the federal bank, reducing disparities between sentences for convictions involving powder and crack cocaine and announcing that he would pardon people convicted of simple cannabis possession under federal or Washington, DC law, it’s fair to say that Biden has, thus far, been a disappointment on law reform. criminal justice. The population deprived of federal liberty has grown in the past two years, and there are few signs that this trend will reverse any time soon. However, there is time and opportunity for bold leadership, something that has long been lacking on this issue at the federal level.

Based on historical precedent, Biden should commute the past-served sentences of 10% of the federal prison population (more than 10,000 federal inmates), releasing a substantial proportion of those approximately 70,000 people in federal prisons for non-violent drug and immigration offenses.

Including some of the hundreds of people indicted for and convicted of participating in the January 6 riots who are not charged with assaulting or interfering with police would demonstrate how seriously you tackle the problem of mass incarceration.

The president is in a unique position to take this bold action for a number of reasons. First, as a senator, he was one of the “tough on crime” Democrats who joined the Republicans in enacting legislation, such as the 1994 crime bill, which pushed for mass incarceration. By taking a big step in the other direction, he would signal to the country that it is time to reverse course.

Second, while the Democrats have lost full control of Congress, Biden can act unilaterally to reduce the federal prison population. The power to pardon or commute federal sentences is a prerogative of the executive branch. And there is ample historical precedent. For example, Presidents Calvin Coolidge and Herbert Hoover granted clemency to more than 1,000 people during their terms when federal prisons held a little more than 10,000 prisoners.

Now that the federal prison population has skyrocketed, a presidential action on a similar scale would mean the release of more than 13,000 people.

One of the challenges of reducing the prison population will always be that a lot of people in the US want to see a lot of people locked up. We just differ on which people.

Third, according to a 2022 federal justice statistics report, federal prisoners are almost exclusively convicted of non-violent crimes. Nearly half are serving time for drug offences, with an additional 5% in prison for immigration offenses. There are 70,000 people who could be released from prison at the stroke of a pen, even before reaching more difficult but still debatable cases, such as those of the 25,000 people who are serving long sentences for possession of weapons. The nation needs to have a difficult conversation about the length of sentences for violent crimes, but that conversation is not necessary for action at the federal level, where few people are prosecuted for violence.

Fourth, the January 6 trials give Biden a unique opportunity to show leadership, offering mercy to people he (and his supporters) would likely want to see locked up. After all, Biden was the candidate whose legal choice the rioters tried to overturn. The federal officials who worked tirelessly on the January 6 trials would staunchly resist any leniency, and rightly so. His understandable frustration with any possible intervention by the president would be shared by many in the US. But real progress on this issue will require tough decisions, something Biden can demonstrate by going against his own preferences and those of the followers of him.

Finally, by commuting the sentences of some of the nonviolent protesters on January 6, Biden would corner his main critic, Donald Trump. Triumph swore pardon all of the January 6 defendants if he is re-elected. By commuting the sentences of at least some of those who did not interfere with the police, Biden would force Trump (who claim (is to «back the blue») to back your action or narrow your talking point to push for pardons for rioters who assaulted police.

Freeing thousands of federal prisoners is the kind of bold move that could kickstart an era of mass incarceration. It’s not just the raw numbers: more than 10,000 human beings released from lockdown. Biden could point to the need to go back to the way we used to think about mercy, which applies even to those who deserve punishment, not just in terms of pardons but in all of criminal justice.