Charles Fain Lehman Biden’s Mass Commutation Ignores the Purpose of Punishment Criminal-justice-reform groups like the ACLU deny the importance of retribution.
https://www.city-journal.org/article/biden-mass-commutation-criminal-justice-retribution
Last week, President Joe Biden commuted the sentences of nearly 1,500 federal inmates. The administration bragged that it was the largest single-day granting of clemency in American history. But a backlash swiftly followed as the public learned whom the president had released: pill-mill doctors, Ponzi schemers, and a judge who got $2.1 million in kickbacks for sending juvenile offenders to for-profit facilities.
Biden’s mass commutation came at the behest of the American Civil Liberties Union and others of what Ezra Klein and Michael Lind referred to in a recent postelection conversation as “the Groups”—the vast but inchoate network of left-wing advocacy organizations that moderate Democrats are blaming for the party’s 2024 defeat. Biden’s lame-duck concession to these advocates raises questions about how much influence such radicals continue to hold in the Democratic Party.
But even more importantly, the popular outrage at Biden’s mass commutation highlights a fundamental problem with the argument advanced by criminal-justice-reform groups like the ACLU. Specifically, they deny the importance of retribution, the notion that the criminal-justice system should impose punishments not just instrumentally—for instance, because it makes the nation safer or discourages crime—but also because criminals deserve it.
Many of those who benefited were, on paper, reasonable recipients of a presidential commutation. They had been released under the provisions of the CARES Act Home Confinement Program, a Covid-mitigation strategy created during the Trump administration that sentenced low-risk, nonviolent federal offenders to serve their time at home rather than in federal prisons.
The program seems to have been a public-safety success. Of the 13,204 releasees, just 22 were rearrested between March 2020 and June 2023, and 96 percent had no violations of their parole, technical or criminal, over the same time period.
These results are not surprising. The program selected participants based on their low risk of reoffending. Given their good behavior, and the fact that they were already home, one can make a reasonable argument that Biden’s commutations were a way to save money without raising the crime rate.
In other words, because the commutees are low-risk offenders, Biden’s act doesn’t frustrate the deterrence and incapacitation functions of punishment. Some might argue that it will even improve the likelihood of their rehabilitation, by facilitating their reentry into the community (though that’s far from certain).
So, if the commutations don’t increase crime, why is everyone so upset about them? That’s the question many supporters of criminal-justice reform are asking. Why should we care if people like Michael Conahan, the “kids for cash” judge who sold children’s freedom, get out of home confinement early?
The answer, of course, is that punishment serves another purpose besides deterrence and incapacitation: retribution. We punish people to reduce crime and sometimes to rehabilitate offenders. But we also punish them because they commit acts that deserve punishment.
Conahan is a perfect example. A 72-year-old disgraced judge, his risk to reoffend is basically zero. And carving three years off a 17-year-sentence is unlikely to do much to encourage others who might be considering committing the same crime. They’re still probably adequately deterred by the original conviction.
The reason Conahan’s commutation is outrageous, rather, is that he committed a heinous crime. He took advantage of children in his care for personal remuneration, all while abusing the public trust invested in him as a judge and elected official. He should be punished because he deserves to be punished. Commuting his sentence frustrates that end.
Criminal-justice reformers have long objected to the concept of retribution. They label the retributive instinct atavistic, dangerous, and racist. Overcoming that instinct—and replacing retribution with a more “humane” system—is their overarching agenda.
As the outrage at Biden’s commutations demonstrates, most people see retribution as legitimate. They understand that someone who does something heinously wrong deserves to be punished, and they are outraged when the state does not fulfill its responsibility to see that punishment meted out.
This explains why the commutations matter. Every time a Democrat like Biden capitulates to criminal-justice-reform groups like the ACLU, he will find himself at odds with most Americans—in some cases because the capitulation makes our streets more dangerous, but in every case, because some people deserve to be punished.
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