Clemency for the Common Good: An Argument to Release Incarcerated Persons in the General Public Interest

During the height of the COVID-19 pandemic, we were reminded of several terrible truths about the modern mass incarceration state: namely, that it collects vulnerable people, places them in conditions where they are unable to protect themselves against many forms of ordinary and extraordinary risks, incubates suffering amongst them, and then spreads that suffering to surrounding communities. The ghastly consequences of these realities during the COVID pandemic led to piecemeal efforts to release moderate numbers of incarcerated people for public policy reasons largely unrelated to the kinds of individualized factors that have traditionally motivated most acts of clemency. This Article draws upon both the successful and unsuccessful aspects of these efforts to theorize about and propose a new conception of the clemency power that is rooted more expressly in our collective public policy goals. This theory, clemency for the common good, resonates with the deeper explanations of more traditional grants of clemency. Transparently adopting a theory of clemency for the common good is likely to protect both prisoners and the general public when the inevitable future pandemic and natural disaster occur, both by speeding releases and ensuring that appropriate procedures are in place. Of equal importance, however, is that the acceptance of such an approach will open dialogues about the wisdom and sustainability of some of the most troubling aspects of the modern mass incarceration state and offer a safety valve to protect us against our most punitive and counter-productive policies.