The coronavirus (“COVID”) pandemic exposed America’s brittle reliance on incarceration as means of promoting justice and social welfare. For each criminal detention site, a single prisoner infection ultimately threatened the entire institutional community. The risk of COVID infection in jails and prisons was, for that reason, more than just pervasive; it was also lethally systemic. Prisoners were sardined behind bars, and the contagion’s presence at any single facility produced rates of infection many times higher than they were in the free world.
The American legal system had a flat-footed response to COVID’s unique threat. Lawyers and advocacy groups fought furiously for legal remedies, but their efforts largely failed to prevent infection and death on a massive scale. The boogeyman of violent recidivism frustrated efforts to secure wholesale remedies, and already over-taxed criminal justice institutions were unable to provide case-by-case relief at the speed and scale necessary to protect detained populations.
There is a temptation to view the COVID-prisoner spectacle primarily as a failure of political and bureaucratic will—exaggerated fear of released offenders swamping the social returns on wholesale discharge. That account is not wrong so much as it is incomplete. I argue that the failure to adequately release criminal detainees also reflected a deficit in the deep structure of American discharge remedies. Specifically, COVID exposed a mismatch between pandemic risks that were systemic and remedies that were not. A single infection could decimate an entire facility, but jurisdictions lacked discharge mechanisms capable of effectuating speedy release at sufficient scale.
I proceed in five Parts. In Part I, I specify the grounds for characterizing COVID as a systemic risk to prisoners and their adjacent communities. In Parts II through IV, I demonstrate the remedial deficit—systemic health risk without systemic remedies—by showing that existing discharge mechanisms are too slow, require too much multilateral unanimity, and vest discharge powers in the wrong institutions. In Part V, I suggest that the key to closing the remedial deficit tracks a broader intuition about decarceration, and that it requires jurisdictions to concentrate discharge powers in decision makers closer to acutely affected localities.
I. COVID Risk and Criminal Detention
American criminal detention was ground zero for COVID outbreaks. By early May 2020, of the ten biggest U.S. COVID clusters—meaning outbreaks connected to a particular institution—seven were in jails or prisons. Over eighty percent of the 2500 prisoners at the Marion Correctional Institution in central Ohio tested positive, giving it the morbid distinction as the country’s single biggest COVID hot spot. The infection rate at New York City’s Rikers Island facility was over six times the rate in the surrounding community, which was itself the early metropolitan epicenter of the U.S. outbreak. Two months after American outbreaks began, seventy percent of the federal prison inmates taking tests were COVID-positive. Because of limitations on detection and testing, moreover, the topline numbers undercount the crisis.
The reasons why COVID infection was so acute inside criminal detention facilities are intuitive. Jails and prisons are under-funded, over-crowded, and populated by detainees who are disproportionately susceptible to illness. These are places that house older, sicker people with complex medical needs, and where “social distancing” is impossible, yet the facilities typically have dismal sanitation and ventilation, and otherwise inferior health infrastructure. Once the infection arrives at a criminal detention facility, it rips through the population like a tornado.
Many of the same circumstances that facilitate prisoner-to-prisoner transmission also facilitate transmission to staff and visitors, who then carry it into the free world. The prison towns where the correctional staff live are disproportionately rural, and the “rural mortality penalty” attributable to poorer health infrastructure in such areas makes these communities particularly vulnerable to the pandemic. The incidence of contagion in America’s criminal detention facilities therefore threatens not just the prisoners but also the fragile rural ecosystems that house them.
In the financial context, “systemic risk” describes the threat to an economic system from a chain reaction in which a single adverse economic event causes substantial, cumulative loss across the entire system. The finance literature uses the term “contagion” to describe whatever phenomenon transmits knock-on effects across the system. In the COVID context, however, the public health terminology is not a metaphor. For my purposes, the systems are the detention facilities and the local communities to which their staff and visitors belong, and the contagion is COVID transmission. Because of (1) how aggressively COVID moves across these systems, (2) the unique vulnerability of a population ravaged by chronic diseases, substance abuse, and age-related complications, and (3) the third-rate remedial health infrastructure, the systemic risk is enormous. The entire community (the system) shares the extraordinary risks associated with a single infection. As I explain in Parts II through IV, existing mechanisms for prisoner discharge are remarkably ill-equipped to meet the scale and timing of these systemic risks.
Systemic risk also justifies a normative assumption I make in the balance of this Essay—that there is moral value in substantial prisoner discharge during the COVID pandemic. Before COVID, political debates over the wisdom of mass incarceration raged, even if the pertinent empirical work rather lopsidedly demonstrated its senselessness. That data generally came down in favor of familiar arguments: that longer sentences did not meaningfully deter future offending, that well-run treatment programs are better at reducing recidivism risk, that longer incarceration is often criminogenic, that prison time imposes huge costs on innocent family members and affected communities, that mass incarceration shatters budgets, that states over-sentence because of moral hazards, that the social costs disproportionately burden communities of color, and so forth.
Because COVID presents systemic risks on top of all of the other evidence favoring decarceration, I assume for the purposes of this Essay that decarcerating during the COVID outbreak is normatively desirable. I do not, for example, answer empirically unsupported arguments about how the social cost of incremental recidivism might exceed the social benefit of COVID-based discharge. Individual acts of violent reoffending might be evocative political arguments, but the actual risks are simply too lopsided. Instead, and assuming that there is social value in speedy, scalable discharge during a pandemic, I train my focus on the remedial deficit.
II. Civil Rights Litigation
The systemic remedy that jumps to most minds is class action relief under federal civil rights statutes—specifically, under the federal habeas corpus provisions and 42 U.S.C. § 1983. Such litigation was indeed widespread, and the complaints sometimes subclassed the plaintiffs into pre-trial and post-conviction detainees. Additionally, the plaintiff class often included a medically vulnerable subclass that sought relief above and beyond the relief sought by the remainder, usually discharge or some other time-bounded physical removal from the vulnerable facility. The Section 1983 claim was usually the vehicle for seeking changed conditions, and the habeas claim was usually the vehicle for seeking release.
As COVID-discharge litigation unfolded, however, the limits of the civil rights remedies became apparent. First, because both involved adversarial judicial process, they simply took too long. Second, the standard of care linked to the underlying Eighth and Fourteenth Amendment claims—that facility operators not be “deliberately indifferent”—proved exceptionally easy for the government to meet. Third, there were serious doctrinal problems with each remedy, including exhaustion requirements, that reduced the value of the federal forum.
A. Habeas Corpus
The result of a successful habeas class action would be a declaration that a particular custody category is unlawful, and an order that class-member-prisoners be discharged. Most plaintiff classes seeking a habeas remedy nevertheless encountered obstacles that were insurmountable: the showing necessary to prove the underlying constitutional violation was too high, the habeas vehicle too closely resembled conditions-of-confinement litigation that courts prefer to funnel through Section 1983, and exhaustion requirements forced plaintiffs to spend precious time seeking inferior state and administrative remedies. Even if plaintiffs could prevail on the most expedited litigation calendar conceivable, moreover, they would spend weeks or months waiting for the ultimate discharge order.
First, habeas class plaintiffs seeking COVID-based discharge must show an egregious custodial defect amounting to a constitutional violation, and the decisional law on the underlying constitutional question is steep terrain. (Section 1983 plaintiffs must show the same thing.) The Eighth Amendment protects post-conviction detainees from unlawful conditions of confinement, and the Fourteenth Amendment provides parallel protection to pre-trial detainees. For these challenges, a claimant must usually prove that corrections officials were “deliberate[ly] indifferent” to a particular risk that jeopardized the health and safety of a prisoner. Supreme Court precedent makes clear that deliberate indifference to serious medical needs violates the Federal Constitution.
Historically, winning under the deliberate indifference standard is difficult, and the early signs for those seeking COVID-based discharge are consistent with that history. In class litigation seeking improved COVID-era conditions in a Texas-based facility, for example, the Fifth Circuit held that it would not assess liability when a facility took some steps to address health concerns, and that there was not deliberate indifference just because the measures taken failed to “reasonably abate” the infection. Instead, the Fifth Circuit explained, the deliberate indifference standard requires COVID plaintiffs to show some subjective intent that is greater than or equal to recklessness—there could be no deliberate indifference finding when the state officials “subjectively believe the measures they are taking are adequate” and the facility “continues to take [medically informed] measures . . . to abate and control the spread of the virus.” Recent Sixth and Eleventh Circuit opinions reached the same conclusion for roughly the same reasons.
Second, there is some dissonance between, on the one hand, the habeas remedy, and on the other, the Eighth and Fourteenth Amendment rights to adequate detention conditions. Conditions-of-confinement plaintiffs usually seek changed conditions under Section 1983, and not discharge under the habeas statutes. Indeed, a well-known thread of Supreme Court precedent reinforces the idea that habeas is for discharge, and Section 1983 is for conditions. Even though such precedent should pose few problems for habeas plaintiff classes in COVID-discharge litigation, the boundary has been a salient obstacle to relief.
The confusion arises from the fact that conditions-of-confinement litigation ordinarily seeks a change in the condition, rather than discharge. That class plaintiffs seek discharge on the basis of an unconstitutional condition has nonetheless caused defendants to frame the class action complaints as typical Section 1983 conditions-of-confinement litigation in disguise. Specifically, government defendants often argued that the Prison Litigation Reform Act (“PLRA”) requires special processing of conditions-of-confinement claims in any discharge-seeking litigation. At least two federal courts have expressly refused to subject habeas class plaintiffs to the PLRA provisions, but many others have simply dismissed habeas challenges as impermissible shortcuts through Section 1983 litigation that the PLRA restricts.
Third, remedy-specific doctrine often obstructed timely relief at scale. Consider the thick exhaustion requirements that some courts imposed on both pre-trial and post-conviction detainees. In some of these cases, the named plaintiffs sued on behalf of other class members and may have sought some sort of collective relief in state courts beforehand. Because exhaustion is typically regarded as a property of individual claims, however, most courts confronted with the question determined that claimants had to exhaust remedies individually—including, for example, a holding that pre-trial class members had to challenge their custody during individual bond hearings. Requiring individualized exhaustion both disables the systemic scope of the remedies and slows them down.
B. 42 U.S.C. § 1983
42 U.S.C. § 1983 is the federal civil rights statute that permits a plaintiff to obtain damages or injunctions against state officials who violate federal law, and the state officials are usually just a stand-in for the state itself. Section 1983 class action plaintiffs seeking COVID-based discharge experience many of the same problems encountered by prisoners in the parallel habeas litigation, as well as some unique problems of their own.
First, demonstrating the underlying Eighth and Fourteenth Amendment violations in Section 1983 litigation involves the same hurdles that it does in habeas litigation. As explained in Section II.A, many jurisdictions have elevated the standard for deliberate indifference beyond what Farmer v. Brennan appears to have contemplated—requiring plaintiffs seeking prospective relief to prove something more than the fact that a defendant is resisting “reasonable measures to abate an intolerable risk of which they are aware.”
Second, Section 1983 plaintiffs seeking discharge run headlong into the PLRA. For these plaintiff classes, courts generally subject the litigation to 18 U.S.C. § 3626(a)(2)–(3), the PLRA’s restrictions on prisoner release. For example, courts have turned back wholesale relief under Section 1983 because there was no showing of non-compliance with a prior remedial order, and because only a specially convened three-judge panel can order prisoner release after finding both (1) that crowding is the primary cause of the federal rights violation and (2) that no other relief helps. These PLRA restrictions cripple collective discharge as a meaningful Section 1983 remedy because of how long it takes to comply with the PLRA procedure; the leading PLRA prisoner release litigation took ten years to wind its way through the federal courts.
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Ultimately, both Section 1983 and the federal habeas statutes are inadequate responses to the systemic risk that COVID creates. The necessary Eighth and Fourteenth Amendment thresholds can be quite difficult for class plaintiffs to clear, and both remedies delay and fragment litigation that should be speedy and collectivized. In fact, any adversarial litigation—with its complex discovery, motion practice, briefing, and appeals—consumes time that is crucial for avoiding systemic loss that grows daily.
III. Administrative Remedies
What about the many state and federal discharge mechanisms that turn on things other than constitutional violations? What I call “administrative remedies” include discretionary pre-trial release; familiar sentence-remission mechanisms such as discharge for good time, work, home detention, facility overcrowding, and terminal illness; outbreak-related release orders for infected and non-infected prisoners; and emergency authority to remove people from certain criminal detention sites. A mix of administrative remedies might look like viable means of securing discharge at the necessary scale, but a peek beneath the hood discloses insurmountable problems with wholesale strategies reliant on such a process.
First, there is an eligibility problem: administrative remedies are simply unavailable to most prisoners convicted of crimes. Good-behavior discharge requires the accumulation of good-behavior credits, expedited parole requires parole eligibility, compassionate release requires that a person be severely ill, and so forth. Most high-profile COVID success stories, in which American jurisdictions have quickly and non-trivially reduced prisoner populations, involve jails—which are less constrained by eligibility restrictions than are prisons. Police and custodians can reduce the jailed pre-trial population by booking less and by exercising more flexible discharge powers, and jails are disproportionately home to offenders convicted for low-level crimes and technical parole violations.
A much larger fraction of American detention occurs in prisons. Prison discharge at appropriate scale is much harder to find, in part because a much smaller slice of the prison pie meets the eligibility requirements for administrative remedies. Most people who secured COVID-based discharge from prisons were those whose sentences were within several months of completion, who had already been designated as non-violent and parole eligible, or who were serving sentences for minor technical infractions. A recent analysis of discharged prisoners concluded that “state prisons have released almost no one.”
Second, most of the post-conviction discharge mechanisms are individualized, meaning that they require case-by-case determinations of risk and reward—for example, what sort of social risk does a prisoner present, how have they behaved in a detention setting, and is there a community support system sufficient to support furlough or reentry? For many of these mechanisms, sufficiently scaled discharge would require decision makers to resolve cases, considered individually, in the same direction. Case-by-case decision making, however, is uncoordinated and time consuming—consider victim notification requirements—and therefore ill-equipped to redress systemic risk. (Perhaps the biggest impediment to even greater relief for jailed prisoners is that, in many jurisdictions, judges must do case-by-case consideration of administrative remedies.)
Third, many administrative remedies present what one might call “multiple-veto” problems that reduce the scale of discharge. A multiple-veto problem exists when more than one entity must concur in order to produce an outcome, such that each decision maker can unilaterally prevent that outcome from materializing. Because administrative discharge often requires several moments of bureaucratic initiative and judicial approval, it is beset by multiple-veto problems. Overcoming those problems requires exceptional political and institutional will that is typically exercised only in favor of prisoners convicted of non-violent, non-sexual, and other non-serious offenses. Jurisdictions were generally unwilling to touch the huge population of “violent offenders,” no matter how old or under what circumstances the offense took place.
Finally, the administrative remedies for illness and disease outbreaks do not account for the systemic risk of a pandemic. Individualized discharge orders for sick prisoners were not sufficient to address the systemic risk of COVID contagion, which required preventative release and involved substantial asymptomatic transmission. Most wholesale remedies reaching not-yet-infected prisoners, moreover, contemplate removal to some other facility. During a pandemic, however, there is systemic risk at every facility that houses prisoners in a confined space. Moving potential infection vectors from old populations to new ones is perhaps the last thing jurisdictions should be doing during a nationwide pandemic. The appropriate response to systemic risk is isolation, not shifting the site of contagion.
B. The Federal Example
Section III.A sets forth the problems conceptually, but illustrations help too. The federal attempt to use home confinement, compassionate release, and furloughs to quickly reduce the federal prison population failed rather spectacularly, and those failures were consistent with struggles across state jurisdictions.
Pursuant to March 2020 federal legislation vesting the Justice Department with broad discharge powers, the U.S. Attorney General (“AG”) issued a directive to the Bureau of Prisons (“BOP”) to increase the use of home confinement for older federal prisoners having pre-existing medical conditions. In an April 3 memo memorializing the directive, the AG singled out three Federal Correctional Institutions (“FCIs”): Oakdale (Louisiana), Danbury (Connecticut), and Elkton (Ohio). The BOP, however, quickly scaled back the scope of the AG mandate—which itself covered only those who were convicted of non-violent, non-sexual offenses—to include only the subset of those who either (1) had served at least half their sentences or (2) had served at least a quarter of their sentences but had fewer than eighteen months left.
Even within the narrowed eligibility band, the AG and BOP still needed the operational compliance of the wardens at individual facilities—and such cooperation was frequently lacking. For example, a month and a half after Congress vested the AG with elevated authority to order federal prison clearance, and a month and a half after the AG exercised it, a federal judge still had to issue a temporary restraining order against FCI Danbury, which failed “to take [the AG’s order and corresponding legislation] seriously.” Partly due to warden non-compliance, the AG’s home-confinement order reduced the federal prison population, across all facilities, by only one-and-a-half percent in the two months following the emergency legislation.
Compassionate release was beset with similar problems. The federal statute also authorized the BOP to reduce a prison sentence upon a showing, by motion of either the Director or the prisoner, that “extraordinary and compelling reasons warrant such a reduction.” The BOP, however, issued no updated guidance as to how the compassionate release standard applied to COVID-based proceedings. Prisoner-initiated relief still required exhaustion of individual claims or a month-long wait, and the incumbent compassionate release criteria focused on outlier health conditions affecting elderly inmates—which made prisoner-initiated relief quite difficult to obtain, even in sound procedural postures. Director-initiated relief was subject to an acute multiple-veto problem, with administrative vetoes given to subordinate prison staff, the warden, the BOP General Counsel, and a senior medical officer from the Correctional Programs Division. At FCI Danbury, there were 241 outbreak-related applications for compassionate release in the first six weeks of the emergency, and none were granted.
A federal judge called the BOP’s process for discharging prisoners “Kafkaesque.” Even when subject to a judicial order to expeditiously implement the AG directive, crucial facilities simply “made only minimal effort to get at-risk inmates out of harm’s way.” A month after a federal judge issued a preliminary injunction against FCI Elkton, the warden had still failed to discharge a single offender.
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The federal spectacle was typical. With respect to administrative remedies, empowered decision makers were generally unwilling to spend bureaucratic capital in favor of most prisoners, and the presence of any multiple-veto problem was sufficient to tank discharge for a person convicted of a serious offense. Administrative remedies for infection also under-performed their superficial appeal, because all criminal detention facilities were subject to systemic risk simultaneously. Whatever theoretical combination of administrative remedies might have been used to productively respond, jurisdictions failed to mix and match them to that effect.
Clemency has fallen into desuetude in most American jurisdictions. Detainees nonetheless sought COVID-based discharge through pardons, commutations, reprieves, or other relief associated with clemency power. Despite calls from high-profile organizations to dust the power off and use it aggressively, clemency was largely unable to reduce criminal detention during the peak of the COVID crisis. There was scattered usage across several state jurisdictions, but nothing at the scale sufficient to meaningfully address systemic risk. That jurisdictions did not lean heavily into clemency power as a wholesale discharge mechanism is unsurprising, given its structure, political economy, and history. Even when they did, the results were underwhelming.
With respect to structure, clemency power is not nearly as nimble as some imagine. At the federal level, although the power is formally vested in the President, the clemency process is almost always passed through the DOJ Pardon Attorney’s office, which is a sparsely staffed site of prosecutor resistance to clemency power. Less than half the states vest clemency power in a single official capable of acting without consultation with a board. Even when state officials are permitted to act alone, they will often decline to do so because they rely on consultation and delegation for political cover. For both state and federal processes then, there are some subtle multiple-veto problems that prevent speedy, broad discharge.
Unfortunately, the political economy of clemency power frustrates wholesale discharge under precisely the circumstances where those multiple-veto problems recede. Although the state of empirical study is imperfect, clemency is generally less robust in jurisdictions where leaders cannot share power—and political blame—with a board or some other bearer of institutional responsibility. Even in a public health environment where the need for discharge seemed pressing, the risk associated with a violent recidivist episode still presented formidable political costs to heads of state and national governments who were not focused on local safety risks and public health benefits. This dynamic probably explains why gubernatorial reprieve mechanisms—which tend to face fewer vetoes than other forms of clemency—have been used in exactly one state (Pennsylvania) during the COVID pandemic.
Finally, the historic vision of clemency power does not align with a model of pandemic risk response. James Madison and James Iredell were the two leading exponents of the pardon (clemency) power at the Constitutional Convention. Their influential framing presents clemency as (1) a device for remitting unjust punishment (“justice function”) and (2) a political tool for avoiding various types of social unrest or rebellion (“statecraft function”). Neither the justice function nor the statecraft function aligned responsively with the problems that COVID presented. Whether a detention site presents systemic risk is a far cry from a question about whether a single individual “deserves” punishment, so the justice function fits poorly. And although the President has sometimes used the statecraft function to grant wholesale amnesty, the existential imperative for such matters has been political (not for public health).
In sum, clemency power might seem—with enough squinting—like a viable way to discharge prisoners at the speed and scale sufficient to confront systemic risk, but things did not work out that way. Clemency’s legacy does not include a public health function, and jurisdictions distribute clemency power in ways that are uniquely ill-suited to speedy discharge of prisoner tranches. As a result, the relief that did materialize was more targeted and curative than prophylactic and preventative, which is a bad skew in the teeth of a pandemic.
V. Looking Forward
COVID not only exposed the systemic risk that pandemics pose to detainees and adjacent communities, but it also underscored the senselessness of mass incarceration as a justice-and-social-welfare strategy. COVID requires that American jurisdictions rethink the alignment between pandemic risks and criminal justice remedies—and that reassessment should double as a deeper reflection on the set of social, political, and bureaucratic reforms necessary to deal with the 2.3 million people in American criminal detention facilities.
In Part V, I explore basic principles for correcting the remedial deficit that pandemics create, on the premise that the obstacle to sufficiently scaled discharge is not just a shortage of political and bureaucratic resolve. Officials make decisions within a broader system of institutionally divided authority, and the current distribution of discharge power is not conducive to speedy, wholesale relief. Consistent with a broader institutional revision I suggest elsewhere, jurisdictions should respond by concentrating discharge powers in decision makers that are closer to acutely affected localities.
A. Concentrating and Localizing
The presence of multiple-veto problems throttles the production of legal outcomes that require unanimous agreement. And so it is with respect to speedy discharge at scale—especially during pandemics. For class actions under Section 1983 or the habeas statutes, class-wide discharge requires adversarial litigation and multi-tiered judicial approval. With respect to administrative remedies, most discharge mechanisms require institutional coordination, have a discharge process that is too individuated to achieve scale, or assume excess detention capacity that does not exist during a pandemic.
One puzzle is why clemency is not a more effective response to systemic risk. After all, the relatively greater tendency to concentrate clemency power in a single institution decreases friction and multiple-veto problems, thereby increasing the likelihood that fixed amounts of political will should be able to overcome opposition. Concentrated clemency power, it turns out, has a different problem. The reason that concentrated clemency power underperforms discharge expectations is that it tends to be concentrated in the wrong entities. Clemency power presents an institutional competence problem that is particularly acute during a pandemic response.
Specifically, jurisdictions concentrate clemency power in national or statewide officials who are at significant institutional and geographic distance from the localities that experience the social costs and benefits of discharge. In most instances, that distance systematically favors continued incarceration. The discharging clemency institution—a president, a governor, or some centralized board—bears all the political costs of visible discharge but captures little political benefit. To put the situation in economic terms, the mismatch between political costs and benefits causes central leadership to skimp on prisoner release.
Closing the remedial deficit requires jurisdictions to address the multiple-veto and institutional competence problems simultaneously. In order to address multiple-veto problems, the state should avoid needless delay and detention by concentrating discharge powers in fewer decision makers. And in order to solve the institutional competence problem, a decision maker closer to the site of systemic risk should own discharge authority.
Decision makers that are maximally sensitive to local costs and benefits of pandemic discharge—that is, local decision makers—will probably make better decisions when confronted with systemic risk. Concentrating discharge power in those institutions increases the speed and systemic responsiveness of a discharge remedy. During the pandemic, the systemic risk is to a particular site of detention and its surrounding community. The officials that best reflect the needs and preferences of that population should make the discharge decisions. In fact, similar logic also applies in non-pandemic scenarios, because the social costs and benefits of such incarceration are disproportionately local and because the best information for evaluating risk is available to local networks.
There are also broader dialogic benefits to localized discharge determinations, whether against a pandemic backdrop or not. Professor Heather Gerken has written extensively about the value of localism in generating meaningful policy dialogue—insofar as it facilitates noisy dissent from the carceral orthodoxy of senior political units. I argue elsewhere, and at much greater length than I do here, that such dialogue would be a particularly useful catalyst for criminal justice reform. In fact, thick unilateral discharge power was once a powerful way of introducing innovative criminal justice practices to the broader policy landscape.
Finally, and wholly separate from its usefulness as a pandemic response, localized discharge power better reflects the changing theory of American punishment. During the last forty years of the twentieth century and the first decade of the twenty-first, America’s dominant penal orientation was retributivist—punishment was harsh, morally just, and deserved in proportion to the transgression against the state. There was little place for local mercy giving when punishment was the stuff of abstract moral justice. Retributivism’s vice-like hold on American punishment is, however, relaxing, and reformist punishment practices are gaining support across the political spectrum. As American punishment paradigms drift in more consequentialist directions, previously unexplored strategies for promoting social welfare—including locally differentiated punishment practices—become increasingly viable.
In the interest of candor, I believe local prosecutors to be among the best institutional owners of local discharge power, but I omit a lengthy discussion of that position here because I make that argument comprehensively in another Article. Of all local officials, prosecutors are likely to be most sensitive to shifts in a community’s criminal justice preferences, are most likely to possess or are best positioned to acquire critical information about the costs and benefits of discharge in specific cases, and are unaccountable to the very statewide entities that have let clemency power wither on the vine. I harbor no delusions about the attitudes of most prosecutors towards discharge. The point is to create the power so that the growing cohort of reformist district attorneys have something to use, if they so choose.
B. Clemency Exclusivity
I want to answer one doctrinal objection to the concentration-and-localization strategy. One of the greatest obstacles to the restructuring of discharge power is the belief that clemency power is exclusive—that the existence of constitutionally specified clemency power bars other discharge mechanisms. North Dakota, for example, has interpreted its constitutionally specified pardon power to exclude legislative attempts to remit criminal sentences. That concept of exclusivity, however, is reduced to less judicial doctrine than one might think, and jurisdictions have a long history of navigating the issue effectively.
First, the model clemency power—the federal pardon power—is in many respects non-exclusive. Mirroring a British power, Congress almost immediately gave the U.S. Treasury Secretary authority to remit penalties for customs violations. Over a century later, in The Laura, the Supreme Court rejected a clemency-exclusivity challenge to such remittitur practice, which had been “observed and acquiesced in for nearly a century.” A few years later, in Brown v. Walker, the Court upheld legislation that effectively permitted pardons for witnesses willing to provide federal investigative cooperation. Equating the federal pardon power with the more general power to displace lawfully imposed sentences, Brown held that the former “has never been held to take from Congress the power to pass acts of general amnesty.” The non-judicial branches have certainly acquiesced; in 2018, Congress confronted no exclusivity challenge when it passed the First Step Act, empowering judges to reduce sentences that were lawfully imposed for narcotics offenses.
Second, most states have been fairly creative in narrowing the scope of non-exclusive clemency power—especially when the purpose of discharge is something other than an expression that a lawfully imposed punishment was too harsh. Take Michigan. Its Constitution states that the “governor shall have power to grant reprieves, commutations and pardons,” and it uses a strict separation-of-powers rule under which the pardon power would ordinarily be treated as exclusive. The Michigan Supreme Court nevertheless rejected a separation-of-powers challenge to a statute that permitted a sheriff to address overcrowding through discharge. Indeed, states must find ways around clemency exclusivity if they want to preserve judicial authority to modify sentences. The same is true for the powers to parole or to order compassionate release. One way or another, most states simply find a way around the idea that a clemency power precludes other institutions from remitting lawfully imposed punishment. Circumnavigating exclusivity rules should be particularly easy when justified as a public health response.
There are lessons in every catastrophe, and COVID’s impact on America’s prisoner population has been especially catastrophic. Jails and prisons present systemic risks because the health infrastructure is deplorable, social distancing is impossible, and the prisoner community has heightened medical vulnerabilities. Those facilities were pandemic tinderboxes, and COVID was more than enough to kindle the blaze.
There is a tendency to view the staggering infection rates at these facilities as a failure of political and bureaucratic will. And it is that, but not only that. The inability to quickly discharge prisoners at the scale necessary to address systemic risk was also a result of a deeper structural deficit. Existing discharge mechanisms are too slow, require too much multilateral unanimity, and concentrate discharge powers in the wrong institutions. To address future waves of pandemic infection, and to accelerate decarceration more generally, American jurisdictions should concentrate discharge powers in decision makers who are closer to acutely affected localities—decision makers who are better equipped to treat discharge as part of a broader public health response.