This morning, the White House announced that President Joe Biden has commuted the sentences of 37 men on federal death row to life without parole. The historic move came shortly after a batch of pardons and commutations for hundreds of people convicted of nonviolent crimes, as well as Biden’s pardon of his own son. In his official statement, Biden emphasized that “I condemn these murderers, grieve for the victims of their despicable acts, and ache for all the families who have suffered unimaginable and irreparable loss.” But he said that his conscience and experience made him “more convinced than ever that we must stop the use of the death penalty at the federal level.”

The political wisdom of Biden’s lame-duck pardons and commutation jubilee is unclear. It seems likely to me that Republicans will use the details of death-row prisoners’ crimes to tar Biden and the Democrats as vaguely approving of torture and murder. Biden himself seemed prepared for that eventuality in his statement, and the recriminations have already begun, despite the fact that life without parole is still a severe punishment: Fair enough; these prisoners’ crimes were to a person evil and left scores of families with holes in their lives. Nevertheless, the moral wisdom of Biden’s decision is compelling to me. Biden’s legacy may be tied up in allegations of corruption and the evident cover-up of his waning health, but he has also secured a place in history as a president of certain mercies, all of which speak of the restraint a sovereign owes his people.

[Elizabeth Bruenig: In praise of mercy]

Biden’s decision was a direct response to Donald Trump’s 2020 federal execution spree, wherein then–Attorney General Bill Barr directed the Federal Bureau of Prisons to resume executions after a 17-year hiatus, then oversaw the deaths of 13 prisoners in six months. Activists and advocates have recently focused on persuading the president to prevent another round of executions on Trump’s watch. In emailed remarks, Ruth Friedman, director of the Capital Federal Habeas Project, explained that “numerous groups and individuals representing a wide array of viewpoints have been calling on the President to take this important step,” adding that “there was also a formal clemency application process through the Office of the Pardon Attorney in many cases, and that process includes communications between the DOJ and a range of stakeholders on all sides of the case.” Among those urging Biden to commute these sentences were the American Civil Liberties Union, Equal Justice USA, the Innocence Project, the Catholic Mobilizing Network, and Pope Francis.

Not every person on federal death row received a commutation. Those who did not were: Dzhokhar Tsarnaev, one of the Boston Marathon bombers of 2013; Robert Bowers, the 2018 Tree of Life synagogue shooter; and Dylann Roof, the gunman responsible for the 2015 Charleston, South Carolina, church massacre that left nine dead. Each case was related to terroristic violence and targeted mass murder. Despite Attorney General Merrick Garland imposing a moratorium on federal executions in 2021, lawyers representing the Department of Justice still defended these death sentences in court; in that respect, it was not surprising that Biden would leave them off of his commutation list. Still, their cases may be tied up in court for the duration of Trump’s term, meaning he will likely be unable to execute any of those three in the coming years.

[Mark Osler: The forgotten tradition of clemency]

The commutations will, then, effectively end the federal death penalty for a generation. “If you cannot end the death penalty legislatively, this is the way you end it in practice,” Robert Dunham, director of the Death Penalty Policy Project, told me. “Death-penalty abolitionists will have to hope that by the time the next set of cases makes it to death row and through the appeals process, that there’s a new Congress and a differently constituted Supreme Court that will take a serious look at the constitutionality and desirability of the death penalty.” Dunham added that Biden’s moral leadership could enable governors in the country weighing their own commutations, such as Governor Roy Cooper of North Carolina and Governor Gavin Newsom of California.

The decision sparked relief and gratitude not only for the men of federal death row, but also for members of the public who had urged Biden to commute. Donnie Oliviero, a police officer from Columbus, Ohio, whose partner had been killed by Daryl Lawrence, one of the men whose sentence was commuted by Biden, said in a statement provided after the fact that “putting to death the person who killed my police partner and best friend would have brought me no peace. The President has done what is right here, and what is consistent with the faith he and I share. Thank you, Mr. President.” Gary Mohr, the former director of the Ohio Department of Corrections, added that he was “so grateful to President Biden for taking this step to ensure no federal correctional professionals will face the harm of participating in executions for the foreseeable future.” For these men, as well as scores of others both on the row and off, Biden has brought about a fraction of peace on Earth, a measure of mercy mild—and a welcome hallelujah.

Earlier this month, nearly 1,500 Americans found themselves the recipients of very good news: President Joe Biden had granted them executive clemency. Thirty-nine were given full pardons. “America was built on the promise of possibility and second chances,” the White House’s press release read. “As President, I have the great privilege of extending mercy to people who have demonstrated remorse and rehabilitation.” Biden’s office was at pains to clarify that while the president had shown mercy, he hadn’t shown too much mercy. Those receiving clemency in the form of commutations were all under home confinement only, and those receiving pardons had all been convicted of nonviolent criminal offenses. Almost two weeks prior, Biden had also pardoned his son Hunter, who had been convicted of gun-related felonies and was facing tax charges. Hunter received the full measure of presidential mercy.

Blowback came swiftly in both instances. Biden was denounced for pardoning his son, because he reneged on prior commitments not to interfere in Hunter’s cases and also because Democrats worried that the move would provide Donald Trump with ammunition for his claims of Democratic corruption as well as justification for his own planned pardons. The president and his team likely expected as much.

What they might not have expected was for the public to react so angrily to the bigger batch of commutations and pardons. Citing clemency picks she disagreed with, Senator Amy Klobuchar of Minnesota called for pardon reform, suggesting that the job be outsourced to a review committee tasked with making recommendations. She wasn’t the only one disappointed with Biden’s selections—online outrage surrounded the commutation of the ex-judge Michael Conahan’s sentence, who had accepted cash kickbacks from a juvenile detention center for sentencing minors to time behind bars. Conahan was sentenced to 17 and half years in prison, then was released to home confinement during the pandemic, and is now free. ​​“I am shocked and I am hurt,” Sandy Fonzo, the mother of a boy who had committed suicide after being placed in a center by Conahan, said in a statement. “Conahan’s actions destroyed families, including mine, and my son’s death is a tragic reminder of the consequences of his abuse of power. This pardon feels like an injustice for all of us who still suffer.”

She’s right, in a way. Mercy is often at odds with justice. Justice means each person receiving their due; mercy means withholding a merited punishment—one can’t exactly have mercy on someone who has done no wrong, as that would be simply giving them their due. Mercy can be right or wrong, but in theory as well as in practice, it isn’t especially interested in being fair; it registers as inegalitarian and arbitrary. Justice, in contrast, is partially defined by fairness. Biden’s latest efforts in this domain have therefore struck some as unjust.

But it’s also the case that a more capacious understanding of justice sometimes requires mercy. That is why Biden should heed another call for clemency—this time commuting the death sentences of all 40 people on federal death row to life sentences instead. That, in my view, would serve to correct unfairness in the capital-punishment regime. Justice here demands something beyond simple fairness; it also asks for mercy to perfect its completion. Even if these sentences are in some sense appropriate, as many argue, mercy serves a more profound justice than the kind meted out by simple deserts.

[Elizabeth Bruenig: Any parent would have done the same]

Last week, the ACLU released a collection of dozens of letters from individuals, groups, and organizations all asking that Biden step in. Many of the letters pointed out that the death penalty is applied unfairly, especially where race and skin color are concerned. That capital punishment in America is a racist institution is indisputably true—the only question is what to do about it. Supporters of capital punishment generally speak of reforming death-penalty proceedings to create more equitable outcomes, but they never seem to propose laws aimed at doing so; even if they did, people already sentenced to death would still face execution. Clemency is made for just this sort of situation, wherein existing law has no other remedy for unfairness in the judicial process. In that sense, mercy can act in service of justice, rather than against it.

It’s also the case that there is more to justice than fairness, even by Joe Biden’s own lights. A letter sent by the Catholic Mobilizing Network asked Biden to take to heart Pope Francis’s calls for “forgiveness, reconciliation, and an end to every form of death penalty,” and “to act in the spirit of mercy and the kind of justice that upholds the dignity of all life, no matter the harm one has caused or suffered.” This kind of justice places paramount value on human life with fairness as a subordinate but influential good. It reckons what is due to a person differently than more narrow notions of justice.

American society tends to favor swift and harsh punishments; it recoils from mercy. Our problem is not and has never been too much mercy, but rather too little. Clemency is an opportunity to correct for this militant and vengeful tendency.

None of this portends a favorable response from the public were Biden to take this step; in fact, these commutations would almost guarantee the opposite, as federal death row includes Dylann Roof, the gunman responsible for murdering nine Black churchgoers studying the Bible in the 2015 shooting at Mother Emanuel AME in Charleston, South Carolina; Dzhokhar Tsarnaev, one of the Boston Marathon attackers whose pressure-cooker bombs took the lives of three and injured 281; and Robert Bowers, who murdered 11 people during morning services at the Tree of Life synagogue in 2018 in Pittsburgh. The rest of the list comprises people convicted of less infamous crimes (several, for instance, murdered prison guards) but who are still guilty of terrible things—worse than anything done by anyone Biden has pardoned so far. Clemency in these 40 cases would entitle Biden to the legacy of a true humanitarian, but could equally damn him to infamy as a feckless bleeding heart who gave Republicans a parting gift on his way out the door. Mercy is something done not for oneself, but for other people. And if Biden’s clemency won’t ever be applauded in history, then it will be in eternity.