University of Miami Law Review


Jonathan Simon


America’s practice of mass incarceration is coming under growing criticism as fiscally unsustainable and morally indefensible. Chronic overcrowding of prisons, a problem that epitomizes the destructive and unlawful core of mass incarceration, now afflicts the federal prison system and nearly half the states. Actual reforms, however, like President Obama’s recent grant of clemency to forty-six federal prisoners serving long drug sentences for non-violent conduct, or recent one-off sentencing reforms aimed at preventing imprisonment for minor drug or property crimes, are manifestly insufficient to end mass incarceration, or even the chronic overcrowding that represents its most degrading and destructive aspect. The problem with both kinds of measures is that they retain two core presumptions that built mass incarceration in the first place. First, the “presumption of dangerousness” that exists against those currently or formerly caught up in the criminal justice system, no matter how minor their interaction. Second, the “presumption of confidence” in prosecutorial discretion to manage the huge portion of the population subjected to such suspicions. Both of these presumptions operate to narrow channels of relief for individual prisoners and reform for the system overall.

To overcome both of these presumptions, this essay proposes a simple extension of the clemency model. The pardoning power under which President Obama granted his recent clemencies, which is possessed by the vast majority of governors with respect to state prisoners, permits the granting of relief (from partial remission of sentence to the complete redaction of the conviction) not only to individuals, but also to whole categories of prisoners. Pardon in this form, 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. President Obama has begun to use this kind of approach to address the related problem of immigration and mass deportation in the United States through his policy, announced in May 2014, that his administration would favor the granting of “deferred action” with respect to whole categories of non-citizens inside the United States and subject to deportation.

While deferred action is not a perfect analogy for pardon (for one thing, it is not necessarily permanent), and while other aspects of the administration’s action epitomize the very presumptions that are blocking reform in the criminal justice field (particularly the blanket exclusion of so-called “criminal aliens”), deferred action paves the way for the kind of action that is necessary to overcome the toxic situation of prison overcrowding in the United States, as well as the larger system of mass incarceration. Amnesty measures are deeply problematic in advanced legal systems like in the United States and for good reason. However, limited application of such measures takes inspiration from the long religious tradition of “jubilee,” and from the existing limited tradition of federal amnesties for those who have violated military service-related laws during major wars. As these traditions suggest, when properly used, amnesties can both relieve immediate problems and improve the legitimacy of legal systems distended by extreme conditions.