By Mark Jordan

During his campaign for the Presidency, Joe Biden positioned himself as an advocate for criminal justice reform, pledging to tackle the problem of mass incarceration and racial inequality that plague America's justice system. But Biden's political history and presidential actions reveal a troubling contradiction between his promises and his legacy. Biden's role in creating policies that contributed to mass incarceration, combined with his failure to utilize presidential powers effectively to grant meaningful sentence commutations and implement early release provisions of the First Step Act, raises serious doubt about his commitment to justice.

Biden's most significant contribution to the mass incarceration crisis stems from his role in crafting and supporting the Violent Crime and Law Enforcement Act (VCCLEA) and the Anti-Terrorism and Effective Death Penalty Act (AEDPA). While those bills were sold to America as a necessary response to a propagated surge in violent crime during the late 1980s and early 1990s, they have since been widely criticized for fueling the growth of mass incarceration, particularly of black and brown Americans.

The VCCLEA and AEDPA implemented lengthy mandatory minimum sentences for a variety of offenses, including drug and other non-violent offenses, encouraged states to adopt similar lengthy sentences, limit their good-time credit schemes, and adopt "three strikes" laws, distributed billions of dollars to prison construction, and hired a national horde of prison guards and administrators. The Acts also placed absurd restrictions on federal courts' authority to overturn wrongful and unconstitutional convictions and incorrect sentences. Overall, these laws accelerated the trend of disproportionately incarcerating minorities and the poor, a legacy that persists today. By establishing a punitive framework for federal and state justice systems, Biden's policies filled America's prisons and jails as quickly as they could be built, giving the United States the highest incarceration rate in the world.

While Biden has since admitted that portions of these Acts were mistakes, he cannot escape the fact that this legislation played a central role in deepening the crisis of mass incarceration and giving solid footing to imprisonment as a national economic industry. His Senate career decisions, in fact, set the stage for the very reforms he recently campaigned against, creating deserved skepticism about the sincerity of his commitment to undoing the damage. That he has unabashedly broken those campaign promises is evidence to many of his insincerity on the issue.

Upon assuming office, Biden had an unprecedented opportunity to use his executive powers to address the long-standing injustices caused by punitive carceral models and mass incarceration. He could have granted commutations to thousands of federal offenders, particularly those wrongfully convicted or serving excessive and disparate sentences because of policies that he once supported.

Yet, despite the public calls for action, Biden's record on sentence commutations is the worst of any president in modern history. As of September 2024, with his Presidency winding down, Biden has granted only 25 pardons and 131 commutation petitions. That is fewer than any other US President going back to Richard Nixon. Moreover, those commutations granted involved mostly low-level drug offenses and prisoners who already nearly completed service of their prison terms. This inaction leaves individuals needlessly languishing in prison, serving excessive sentences under laws that are outdated and that most agree should never have existed in the first place.

The lack of meaningful commutations is particularly stark given the COVID-19 pandemic, which highlighted the dangers of imprisoning people unnecessarily and the vulnerability of incarcerated populations. Biden had--and still has--an opportunity to use commutations not just as a tool for justice reform but also as a public health measure, even as the Federal Bureau of Prisons struggles to curb sexual and other abuses of its inmates by staff and to provide adequate health care to an aging prison population. Instead, his failure to act has left these populations exposed to contra-rehabilitative and life-threatening conditions, further exacerbating the harm already done by decades of draconian sentencing laws.

Were he running for reelection, Biden's inaction could be said to reflect a political strategy wary of publicly embracing the progressive criminal justice reforms he once promised. But his administration has focused more on funding police and expanding federal police powers, further growing the prison industry and national police state, than dismantling the structural issues that perpetuate mass incarceration and racist criminal laws.

As a right-leaning Democrat, Biden has long ignored the demands of a progressive party base in favor of more conservative Democrats and swing voters. Broad commutations of sentences might be seen as a threat to the prison industrial economy he has championed and the momentum for greater federal police powers. Moreover, many Democrats fear that making good on Biden's justice reform campaign pledges may provide "soft-on-crime" propaganda fodder to the Trump camp and Republicans more broadly in what is shaping up to be a tight election cycle across the country. However, this approach undercuts Biden's moral obligation to rectify the tremendous intergenerational harms caused by his earlier policies and fails to meet the urgent demands for justice from those communities most affected by mass incarceration: poor, black and brown communities.

The human costs of Biden's failure to deliver on his commutation promises is staggering. The over-incarceration of Americans, particularly black and brown individuals, continues to devastate families and communities. Offenders wrongfully convicted and given disproportionately harsh sentences under outdated laws remain imprisoned despite a growing national consensus that their convictions and sentences were unjust. These individuals represent not just statistical failures but lives disrupted, potential wasted, and communities left without parents, siblings, and children. Last year, in the case of Jones v. Hendrix, the US Supreme Court held that provisions of the AEDPA operate to prevent courts from releasing a category of federal prisoners who are actually innocent of their crimes of conviction.

Biden's inaction also undermines the momentum of broader justice reform efforts. By failing to act boldly in commutations, he misses an opportunity to signal to federal and state lawmakers that the time for serious criminal justice reforms is now. His reluctance risks setting a precedent for future presidents who may similarly shy away from using executive powers to address systemic injustices. Indeed, kamala Harris has made no mention of justice reform during her campaign, and has, in fact, embraced her former role as prosecutor and state's attorney in an effort to defeat the Trump camp's "soft-on-crime" criticisms.

While President Biden's 2020 election campaign was wrought with the promise of meaningful justice reforms, those promises have gone unkept, cementing his legacy as architect of the modern prison industrial complex and federal police state. The crime bills he pushed through Congress during his senate career and the policies he supported have left an indelible mark on the nation's justice system, one that continues to reverberate today. His failure, as President, to deliver on sentence commutations only serves to further tarnish that legacy,

For those who have suffered under the weight of these policies, Biden's lack of decisive action on commutations is a bitter reminder that rhetoric alone cannot undo a half-century of harm. Real justice demands bold action, and until President Biden fully embraces his role in addressing mass incarceration, his promises of reform remain unfulfilled and his legacy one of racism, broken families, and senseless pain.