Hey folks, Eli Honig here. On this week's show, we've got a great topic for you. We're talking about the presidential pardon power, of course. This subject is receiving an awful lot of attention after President Joe Biden's controversial pardon of his son, Hunter. And with Biden's presidency coming to an end,
There are all sorts of questions about whether and how he'll use the pardon power and the clemency power in other cases. For example, will he commute the sentences of the 40 or so people who currently are on federal death row? At the same time. there's an ongoing debate about whether the death penalty should be outlawed altogether. With me today is the perfect guest for this conversation, Rachel Barco. You all know Rachel, she's a cafe contributor and she's a professor at NYU Law School.
served on the United States Sentencing Commission and she's an expert on criminal justice and the president's pardon power. If you're already a member of Cafe Insider, head on over to the Insider feed to listen to our full conversation. Listeners of the Council remain here for an excerpt from my discussion with Rachel. To become a member of
Cafe Insider and get access to two new podcast episodes each week, head over to cafe.com slash insider pod. That's cafe.com slash insider pod. You can try the membership for just $1. for one month. That's cafe.com slash insider pod. Now onto the show. So obviously you are a proponent of a broad use of the pardon power. Maybe not.
I don't want to state it too broadly, but right now you seem to believe there are hundreds and more maybe people who deserve pardons. What broad categories of people would you like to see pardoned in the remaining weeks of the Biden administration? So first would be the people that have that positive recommendation from having gone through the process. I think all those should be granted. There is no reason for those to be second-guessed.
Because if you can make it through that process, there's really, really, you shouldn't have any questions. It's not like there are softies over at DOJ, grant them. That would be category one. The second one would be... During COVID, a bunch of people were released under what's known as the CARES Act, and it was a temporary release.
If they were vulnerable to the virus and they were released when Bill Barr was the attorney general. So himself, not exactly, you know, a softie for this issue. He released thousands of people who were vulnerable and they have been out.
They are leading law-abiding lives, but because the pandemic is over and that was emergency legislation, they could all be sent back to prison. Michael Cohen and Paul Manafort jumped to mind. Well, Manafort's been pardoned, but could Michael Cohen be called back to prison?
because he had several years left and he was let out early under this action. Anyone who was out for CARES Act would be in this category. I didn't know that he was a CARES Act release, but it would be any of the people who are. And, you know, the point would be, you know, why are we sending them? back. You know, they have shown that they're leading law abiding lives and it's a waste of resources.
You know, that'd be a big group. And by the way, most of the clemency grants that Biden has issued so far and during his time in office have been CARES Act people, people who are already out and he just made it permanent. And so he would just I would just argue that he should do it for the broader group.
The other group that I think should be considered, and this one, you know, is I recognize is not as universal, but everyone who's on federal death row right now is in death row under a moratorium. under the Biden administration's moratorium where they cannot be executed because of the moratorium that is in place. But as soon as Donald Trump takes office, those executions will pick right back up again. He has said as much.
There's been a pledge by Project 2025 made it a priority to, you know, clear out that death row. And when they say clear it out, they mean clear it out by actually going through with the executions. And President Biden has been very outspoken about being an opponent of the death penalty in part because of his faith.
So that would be another category of cases that you could commute all of those people to life sentences and that would save them from being executed in the Trump administration. The other categories that I would put in the list.
When President Biden had that proclamation, you might remember, where he was issuing this pardon for all the marijuana offenders and, you know, to great fanfare, not a single person got released from prison because there just aren't people in federal prison for marijuana. Like, that's just not, you know, they're there for distribution. And distribution is, in many states, that's...
They're selling legally in states. It's still against federal law, but it's been sanctioned legally in states and it's happening. People are making lots of money off of it. And we still have people serving very long sentences for it. So I would argue that's another category he should be thinking about is to extend that proclamation, not just to possession, but distribution for marijuana.
And then another one, and I'll stop with this one, although I really personally have a long list, but the other one that I think is easy would be people who are serving sentences that they would not get today. The law had changed. They were serving under these old draconian mandatory minimums, honestly. many of which were passed when President Biden was a senator and led the charge for these. And they're, you know, excessively long sentences for drugs.
and they're serving life, they're serving multiple decades, and they wouldn't get those sentences today, but the laws hadn't been made retroactive, I think he should give those people relief. I think it's hard to argue with any of the, well... It's not hard to argue with the death penalty one, which we'll talk about in a second. But other than that, I think you make a very compelling case. And by the way, on the death penalty topic.
You said that it's not hypothetical that when Trump comes in, the people who are on death row now, those executions will resume. I will give you an exhibit A in your favor, which is in the last few weeks of the first Trump administration, Bill. Barr really pushed this along. I wrote about this in my first book.
There were, I believe, seven. There hadn't been an execution since Timothy McVeigh, I believe, you know, nearly two decades prior. And Barr all of a sudden sort of put the foot on the gas and they executed. I believe it's seven. It's somewhere around there. death row inmates in the last few weeks or the last few months of Trump one. So I have no doubt that that will resume when Trump two.
Do you have any insight? And I want to focus on the death penalty issue here. Do you have any insight as to whether is this just a theory? that commentators and academics are advancing? Or is this something that's being, do you have any idea of, is it seriously being considered within DOJ and the White House?
Thanks for listening, everyone. To listen to the full analysis and never miss future episodes of Cafe Insider, become a member by heading to cafe.com slash insiderpod. And thank you all for supporting our work.