Pandemic sentence remissions: a model for executive decarceration during and following COVID-19

Abstract

During the COVID-19 pandemic, prisoners around the world have been released from custody as a result of generally applicable government policies or individualised administrative decisions. This has brought to light the ways in which the Executive may, consistently with historical practice and contemporary exigencies, alter the effect of sentences imposed by the judiciary. In this comment, the author argues that this phenomenon also has implications for those prisoners who have not been released during the pandemic. Taking Australia as the immediate site for his intervention, Murphy argues that–under existing legislation–thousands of prisoners may now be eligible for sentence remissions to account for the especially onerous conditions of imprisonment during the pandemic. Many aspects of this proposal are modest, especially its framing within current doctrine. Yet the modesty of the proposal serves to uncover a middle ground for the meeting of criminal justice traditionalists and advocates of decarceration. Meaningful, if provisional, compromise on decarceration may be closer than we think.