Biden’s Commutations

fair and unfair criticisms

Biden recently announced pardons for thirty-nine people. All had been convicted of non-violent offenses, mostly drug offenses, mostly committed in their late teens or early twenties. All have served out their sentences and appear to have made respectable lives since. Pardoning them means that they no longer have a conviction on their record, no longer have restrictions in their right to vote, serve on a jury, own a gun, do a variety of other things. They are listed on a Clemency Recipients List from the White House with a paragraph on each; absent some additional information about their misdeeds, which I do not expect, I see nothing wrong with Biden pardoning them.

Biden also commuted the sentences of 1499 people. These were people still serving sentences — the commutation is a get out of jail card. It is not as good as a pardon would have been for these people since they will still have the conviction on their record and be subject to any resulting legal disabilities but it is better than a pardon for the people Biden pardoned since all of them were already out of jail. The list released by the White House has a paragraph on each person pardoned but, for the much larger number whose sentences were commuted, only a list of names.

Some of them are notable. They include Michael Conahan, one of the two judges convicted in the Pennsylvania Kids for Cash scandal of accepting bribes to shut down the county public youth detention facility and send large numbers of juvenile defendants instead to a newly constructed, for-profit facility. He was subsequently accused of agreeing to generate at least $1.3 million per year in receivables that could be billed to taxpayers in exchange for receiving kickbacks from the facility owner.

The commutations included a number of other people who had been convicted of very serious offenses but Conahan’s was the case that drew the most hostile attention, including a public condemnation of Biden’s decision by the Democratic governor of Pennsylvania. This raises two questions: whether Conahan’s crime was more outrageous than the others and whether Biden’s commuting of his sentence was justified.

Conahan’s Crime

Conahan and another judge, Mark Ciavarella, accepted several million dollars of bribes in exchange for doing favors for the owner of the private prisons. That is corruption and a substantial crime — but not compared to the case of Rita Crundwell, a former comptroller in Dixon, Illinois who was convicted and sentenced to nearly 20 years behind bars for using her position as comptroller to steal nearly $54 million from the small town best known as the boyhood home of Ronald Reagan. Compared to that, the cash part of Kids for Cash was pretty small potatoes. Or compared to the case of William Gallion who was convicted, along with Shirley Cunningham Jr., of scamming more than 400 clients out of $94.6 million they had won against the makers of fen-phen. Or compared to Gregory J. Podlucky whose beverage company presented fake books and false audits to repeatedly obtain nine-figure loans, millions of dollars of which went to Podlucky for a 24,000-square-foot stone castle as well as jewels, gold, watches and model trains; prosecutors said investors and lenders lost $628 million in the fraud. All of them had their sentences commuted too.

The cash part of Kids for Cash was not what people were angry about. Whether their anger was justified depends on two things:

1. Were the for-profit facilities Conahan sent kids to worse for them than the county public youth detention facility that he arranged to have shut down?

I have found no information on that question.

2. Were kids being sent to the facilities who would otherwise have been acquitted, received some much lighter sentence, or never have been charged and tried at all?

Reading through the two Wikipedia articles (Conahan and the Scandal) and other stories online I found no summary conclusions but a lot of pieces of evidence. For example:

The Center's attorneys determined that several hundred cases had been tried without the teenaged defendants having received adequate assistance of counsel. (Conahan Wiki)

Ciavarella and Conahan were also charged with "Ordering juveniles to be sent to these facilities in which the judges had a financial interest even when Juvenile Probation Officers did not recommend placement," (Scandal Wiki)

Ciavarella disposed thousands of children to extended stays in youth centers for offenses as trivial as mocking an assistant principal on Myspace or trespassing in a vacant building (Scandal Wiki)

The state Supreme Court has ordered the expungement of 2,401 criminal records belonging to youth who appeared before Ciavarella and Conahan. (“Prisons are no Place for Profit”)

Youth and their families were lured into waiving the youth’s right to counsel, with 54.8% of children waiving counsel in Luzerne as compared to 7.4% throughout the rest of Pennsylvania. Children in Luzerne were also two and a half times more likely to be sent to out-of-home placement than in other parts of the state. (Review of Kids for Cash by William Ecenbarger)

Ciavarella and Conahan were also charged with "Ordering juveniles to be sent to these facilities in which the judges had a financial interest even when Juvenile Probation Officers did not recommend placement," (Scandal Wiki)

Any one of those might be the behavior of a bad judge who wasn’t corrupt, but combined they make a pretty clear pattern:

In signing the legislation on August 7, 2009, Governor Ed Rendell castigated Ciavarella and Conahan, saying they "violated the rights of as many as 6000 young people by denying them basic rights to counsel and handing down outrageously excessive sentences. (Scandal Wiki)

Judging Biden

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. (Statement from President Joe Biden on Providing Clemency ...)

That brings us to the next question — was Biden’s decision to commute Conahan’s sentence outrageous?

The response by Biden’s defenders is that he did not decide to commute Conahan’s sentence, may not have realized he was doing so. What he decided was to commute the sentences of all of the people who had been transferred from prison to home confinement during Covid in order to reduce the risk of Covid in prisons. The decision to do that was made by Trump.

The proper criticism of Biden is not that he decided to commute Conahan’s sentence. It is that he chose a policy that let him commute a large number of sentences without having anyone check on the individuals, a policy whose justification implicitly assumed that the only functions of punishment are reform and incapacitation, with no role for either deterrence or desert. For the original shift to home confinement what was important was the risk of escape and re-offending, so it made sense to select nonviolent offenders. If they deserved more punishment they could be put back in prison after the Covid danger was over.

The fact that someone spent time in home confinement without escaping or committing more crimes is evidence that he is no longer a danger to others but not evidence that he doesn't deserve further punishment or that his offense wasn't one it is important to deter. The fact that one of the people released was someone most voters, informed of his crimes, believed deserved severe punishment, ideally burning in Hell for a century or two, is evidence that most voters do not share the implicit assumptions needed to justify the policy.

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