It was a good time to be a bad guy.
This is one of the enduring features of the Trump presidency, both in the halls of power and in the street mobilization it inspired. Many progressive critics noted throughout the administration’s tenure that “the cruelty is the point” of the GOP’s actions. So too was the graft. The obvious cruelty and the blatant corruption came to life in the administration’s parting embrace: an acceleration of mass incarceration and a failed putsch at the Capitol.
On December 22, Donald Trump granted 15 full pardons. Among the recipients were 2 additional figures from the Mueller investigation into Russian election interference; 3 former Republican Congressmen who committed financial fraud; 2 Border Patrol agents who attempted to cover up their shooting of an unarmed Mexican man; and 4 former Blackwater mercenaries who ambushed a group of Iraqi civilians in 2007, killing 14 of them. A day later, another 26 pardons came, mostly for Trump loyalists like Roger Stone, Paul Manafort, and Charles Kushner—father to Trump’s son-in-law and fellow creepy real estate tycoon.
And on his last day in office, the now twice impeached Trump issued 73 pardons and commuted the sentences of 70 others. The recipients included a raft of wealthy hucksters, including 7 “doctors or health care entrepreneurs who ran discredited health care enterprises” or engaged in massive fraud; 2017 inaugural organizer Elliott Broidy, who “pled guilty to conspiring foreign lobbying laws on behalf of Chinese and Malaysian interests”; and former White House Chief strategist Steve Bannon, who was arrested in August for pocketing some of the $25 million that he and his allies solicited in a pro-Trump effort to fund a border wall.
In between the two rounds of pardons, a rightwing mob attacked the US Capitol. The mob included at least 39 police officers from 17 states, plus at least 9 former police officers and a notably high proportion of military veterans. The ease with which they broke in and trashed the Capitol suggests that police were cooperating with the insurgents. Black officers from the Capitol police would subsequently highlight the depths of structural racism inside the department, an analysis that helps explain their lackluster response during the events.
Although Trump failed to pardon any of them, the rioters understood themselves as immune from police regulation. When police did try to stop the insurgents, some of them, bearing the Thin Blue Line flag, attacked police. “They’re shooting at us,” one rioter cried. “They’re supposed to shoot BLM, but they’re shooting at us.” And when the FBI began arresting people in the days afterward, the real estate broker who flew on her private jet to attack the Capitol decided to request a pardon.
Even if none was forthcoming, the request was not unreasonable. After all, the Capitol attack was a scaled-up version of the assault rightwing groups staged on state capitols over the spring and summer without consequence. And of course, there was the corruption: when it was all over, the New York Times reported a pay-to-pardon market, where some close to Trump solicited contributions of thousands or even millions of dollars to secure a pardon.
Outgoing presidents customarily issue a slew of pardons and commutations; governors can do the same thing for people incarcerated at the state level. Yet Trump’s actions were more than the typical partisan lame-duck pardons. For he was not just supporting his loyal base of racist mercenaries and elitist grifters. Trump was pardoning mass incarceration itself.
More than numbers of people in prison, mass incarceration is about reinforcing a racist system of class rule. It is an argument about deservingness, not a measure of wrongdoing. Mass incarceration is the system set up to protect people of privilege and those who serve them from legal consequence—no matter what grotesquerie they carry out. From policing through incarceration, the criminal legal system is the discretion of the bourgeoisie made manifest. Within this realm—as Trump and the initial response to the Capitol attack both made clear—who lives, who dies, and how they do so is determined by who someone is, not what they have done.
Stratification is, among other things, an act of categorization. And perhaps the biggest sorting act of racial capitalism is an invisible one: the elite people whose offenses never catch the ire of a police officer, the attention of a prosecutor, the admonition of a judge. But every once in awhile, even the well-heeled run afoul of the law. While rare, such encounters can result in legal punishment. These rarities can even turn the accused into reform advocates, as happened with Nixon advisor and Watergate prisoner Chuck Colson, who went on to launch Prison Fellowship Ministries and support the conservative prison reform effort Right on Crime.
With the stroke of his pen, Trump sought to show that the system is not supposed to punish people who kill on behalf of the US government, whether on the border or overseas. It is no crime to turn your campaign into a cash cow, as newly pardoned former representative Duncan Hunter did, and indeed, as Trump himself has repeatedly done. And as the Capitol attackers seemed to understand, it is no crime to use whatever dirty trick you can think of against your opponents. What is the point of being rich and powerful otherwise?
These pardons were not the first time Trump has utilized presidential power to justify graft and racism. Indeed, his pardon record of the last 4 years is entirely consistent in this regard. His issued his first pardon to career racist and former sheriff Joe Arpaio. Other recipients of Trump’s generosity include Dick Cheney’s former advisor Scooter Libby, rightwing provocateur Dinesh D’Souza, 3 soldiers convicted of war crimes, billionaire financier Michael Milken, and former NYPD commissioner—and Giuliani associate—Bernard Kerik.
Despite CNN commentator Van Jones praising Trump for passage of the First Step Act in 2018, even telling the Conservative Political Action Committee that Republicans are “the leaders on this issue of [prison] reform”—Trump and the GOP have exacerbated the carceral system at every step. Under Trump, the Department of Justice has prosecuted whistleblowers such as Reality Winner and Daniel Hale. In 2018 Trump issued an executive order keeping Guantanamo Bay prison open indefinitely, effectively granting life sentences to the 40 people who remain incarcerated there without charge. His administration granted no pardons or other relief to political prisoners such as Leonard Peltier, Mutulu Shakur, or Marius Mason, among many others, who have served decades of what may prove to be death sentences.
Instead, the Trump administration rushed to execute more people incarcerated in federal prisons in 5 months than the federal government had over the last 50 years—13 since July, the last of which came just days before Trump left office. All of these executions received the imprimatur of legitimacy from a hard-right Supreme Court, 1/3 of whom were appointed by Trump.
And daily the wounds of border policing nativism cut deeper. More than 500 children separated from their parents at the border by Trump apparatchiks have yet to be reunited with their families. Meanwhile, according to a recent report from the Detention Watch Network, the Trump administration’s commitment to detaining immigrants despite a pandemic “added over 245,000 cases to the total U.S. caseload.” In the run up to the election, with the pandemic raging, ICE actually ramped up its “mass-scale sweeps”; more than 2000 people were arrested in July and August alone.
The entire worldview of the GOP revolves around maintaining and expanding carceral authority of police and prisons. Indeed, the above-all-else support for proto-fascist entities like ICE and Border Patrol may account for Trump’s unexpected support in south Texas in the election. The bevy of pardons granted to con-men, sycophants, and mass murderers is in keeping with the overarching political project of mass incarceration itself. The carceral state has always been an effort to impose the iron will of racial capitalism.
Even with Trump gone, the punitive impulse remains strong. Despite some high-profile arrests of putschists, the FBI and Justice Department have claimed that they may not have sufficient resources to prosecute all of the Capitol attackers. No such problem befell prosecutors after previous—and less lethal—attacks on the Capitol, including when 4 Puerto Rican Nationalists fired shots from the spectator’s gallery in the House of Representatives in 1954 and spent 25 years in prison, or when leftist anti-imperialists bombed the Senate building in protest of the 1983 US invasion of Grenada and were sentenced to decades in prison. While rightwing putschists marched in and out of the Capitol unmolested, one of the leftwing militants accused of the 1983 attack spent 5 years in preventative detention before being charged with the offense; 3 people spent between 14 and 25 years in prison for it, part of a broader legal campaign against a revolutionary left underground.
Organizers and scholars have rightly focused on protecting and defending the targets of the carceral state—the victims and survivors of targeted political repression of radicals as well as the broad-based social repression of the working class, overwhelmingly Black, Latinx, and Indigenous communities. Yet Trump’s pardons and the attack on the Capitol are two sides of the same coin: both efforts highlight that the system is there not only to control the oppressed but to sanction the elites. And as the gap between them grows larger, the carceral state becomes ever more necessary to secure their ongoing rule.
It is not, then, the pardons themselves that are the problem. We need more pardons, not fewer. It is not, at least in the immediate sense, a problem that presidents have wide latitude to pardon people in the federal legal system, much like governors do of their respective states. The problem is that Trump uses that pardon power to reinforce the carceral system itself.
Since the start of the pandemic, organizers nationwide have pressed state governors for wider use of pardons, clemency, and other forms of decarceration in order to save lives. Governors have refused the kind of large-scale releases that public health demands, seemingly preferring to defend the legitimacy of mass incarceration above all else. The result is that prisons, jails, and detention centers have topped the list of COVID clusters throughout the pandemic. The Prison Policy Initiative estimates an additional 566,804 COVID cases from May through August as a result of mass incarceration. Roughly 1 in 5 incarcerated people has tested positive for the coronavirus, at least 275,000 have been infected, and more than 1700 incarcerated people have died from it around the nation. It is a grim experiment in human sacrifice that, as some states debatewhether even to vaccinate prisoners, shows no signs of abating.
In that, even liberal governors have more in common with the former President than they would care to admit. They follow the example set by Barack Obama, whose late-in-office clemencies tilted heavily toward commutations rather than pardons. Commutations shorten someone’s prison sentence, whereas pardons restore voting rights and reassert the civic life of the convicted person. While Obama publicly embraced the idea of forgiveness when he established a “clemency initiative” in 2017, the initiative was limited to “low-level, nonviolent offenders who had served at least 10 years in prison and had no history of violent behavior before their conviction.” That such a narrow category—people who had served more than 10 years for a low-level nonviolent offense—could exist demonstrates how unjust the prison system is. Nevertheless, it also excluded most incarcerated people from consideration, no matter how unjust their incarceration. Indeed, everyone executed in the Trump administration’s killing spree—despite assertions of innocence, inequality, or other mitigating factors in the cases of many of those executed—could have been prevented by the Obama administration.
And Bill Clinton greased the wheels of the federal death penalty when, in response to the Oklahoma City bombing, he passed the Anti-Terrorism and Effective Death Penalty Act. The Act limited the appeals process and made it easier for the federal government to kill. Ostensibly passed to punish far-rightists like Timothy McVeigh, AEDPA instead helped kill Lisa Montgomery and Brandon Hicks. Recognizing that legacy of carceral expansion, 135 civil rights groups sent a letter to the incoming Biden administration opposing the creation of new counterterrorism measures.
Trump wielded the pardon power for the same reason governors have largely refused it: to defend mass incarceration and the political-economic inequalities it upholds. Joe Biden has called for an end the federal death penalty, something dozens of Democratic Congresspeople have urged him to do. It would be a good start. Yet few have commented on the other death penalty, the use of life or virtual life sentences—which has accelerated in recent decades to the extent that there are more people confined under such sentences today than were incarcerated in the entire country in 1970. Biden, as well as governors nationwide, can begin to end mass incarceration by wielding the pardon power for good—not as a defense of mass incarceration but as a tool to end it. We need pardons for the masses, to amplify antiracist mercy. And we need much more than that. We need an end to the carceral state, which preserves every other injustice in society.