Jonathan Simon, Amnesty Now! Ending Prison Overcrowding through a Categorical Use of the Pardon Power, 70 U. Miami L. Rev. 444 (2016)
America'spracticeofmass incarcerationis coming un- der growing criticism asfiscally unsustainableand morally indefensible. Chronic overcrowding of prisons, a problem thatepitomizes the destructive andunlawful core ofmass in- carceration, now afflicts the federal prison system and nearly half the states. Actual reforms, however, like Presi- dent Obama's recent grant of clemency to forty-six federal prisonersserving long drug sentencesfor non-violent con- duct, orrecentone-offsentencingreformsaimedatprevent- ing imprisonmentfor minor drug or property crimes, are manifestly insufficientto endmass incarceration,or even the chronic overcrowding that represents its most degrading and destructive aspect. The problem with both kinds of measures is that they retaintwo corepresumptionsthatbuilt mass incarcerationin thefirstplace.First, the "presumption of dangerousness"thatexists againstthosecurrentlyorfor- merly caught up in the criminaljustice system, no matter how minor their interaction. Second, the "presumptionof confidence" in prosecutorialdiscretion to manage the huge portion of the populationsubjected to such suspicions.Both of these presumptions operate to narrow channels of relief for individualprisonersandreform for the system overall.
To overcome both ofthesepresumptions, this essaypro- posesasimple extensionofthe clemency model. Thepardon- ingpower under which PresidentObama grantedhis recent clemencies, which is possessed by the vast majority of gov- ernorswith respectto stateprisoners,permits the granting of relief(from partialremissionof sentence to the complete redactionof the conviction) not only to individuals, but also to whole categoriesofprisoners.Pardonin thisform, known generally as amnesty, has a limited history in the United States, but has been commonly used by European countries precisely to relieve problems like prison overcrowding. PresidentObama has begun to use this kind of approachto addressthe relatedproblem ofimmigrationandmassdepor- tation in the UnitedStates through hispolicy, announcedin May 2014, that his administrationwouldfavor the granting of "deferred action" with respect to whole categories of non-citizens inside the UnitedStates and subject to deporta- tion.
While deferredactionis notaperfectanalogyforpardon (for one thing, it is not necessarilypermanent), and while other aspects of the administration'saction epitomize the very presumptions that are blocking reform in the criminal justicefield (particularlythe blanket exclusion of so-called "criminalaliens"), deferredactionpaves the wayfor the kind of action that is necessary to overcome the toxic situa- tion of prison overcrowding in the United States, as well as the largersystem of mass incarceration.Amnesty measures are deeply problematicin advancedlegal systems like in the United States andfor good reason. However, limited appli- cation of such measures takes inspirationfrom the long re- ligious traditionof 'jubilee," andfrom the existing limited tradition offederal amnestiesfor those who have violated military service-relatedlaws during major wars. As these traditionssuggest, when properly used, amnesties can both relieve immediate problems and improve the legitimacy of legalsystems distendedby extremeconditions.