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On November 20, 2014, President Obama, frustrated by congressional inaction on immigration, announced an ambitious and potentially transformative prosecutorial discretion policy to forego the deportations of millions of low priority undocumented immigrants. That announcement immediately sparked legal challenges, which quickly wound their way to the Supreme Court, and a nationwide debate about the limits of the President's prosecutorial discretion authority. President Obama's actions are part of a larger trend whereby modern presidents have increasingly used robust assertions of prosecutorial discretion powers to achieve policy goals that they could not realize through legislation. There are clear dangers in allowing a president to wield excessive prosecutorial discretion power. Taken to an extreme, in the context of the vast modern administrative state, a president could significantly undermine the will of Congress across a wide array of subject areas and, thereby, upset the separation of powers enshrined in the Constitution. This legitimate concern has led some to argue that a president should not be permitted to exercise prosecutorial discretion categorically or based on her own normative view of the public interest. Categorical normative prosecutorial discretion policies pose the greatest risk of infringing on Congress' primary policy making role; however, excising normative judgments and agency wide policies is entirely unworkable. The core purposes of prosecutorial discretion — justice, mercy and societal utility — all necessarily require the President to make independent judgments about the wisdom of prosecution. Limiting prosecutorial discretion to case-by-case determinations would be at odds with historic and modern practice and would significantly undermine the institutional design goals of transparency, uniformity and accountability. This Article suggests a new way to think about the boundaries of the President's prosecutorial discretion authority. Specifically, I propose that the nature of prosecutorial discretion power is dependent on the context of enforcement and that the power is at its zenith when a president exercises her discretion to protect physical liberty. It is in the liberty deprivation context where historical precedent, the Constitution's structural bias against liberty deprivation and the textual sources of prosecutorial discretion powers all militate in favor of robust presidential powers as a necessary check against excessively punitive statutory schemes.

In the waning days of the Obama Administration, with Trump's promised immigration crackdown looming, over one hundred advocacy organizations joined forces to urge President Obama to permanently protect hundreds of thousands of immigrants from deportation by pardoning their breaches of civil immigration law. That pardon never materialized and, as expected, the Trump enforcement regime is sowing terror and devastation in immigrant communities nationwide. While it seems unfathomable that the current president would use his pardon power to mitigate even the most extreme applications of our nation's immigration laws, there is unfortunately no indication that the harshest aspects of the immigration laws are likely to be revised by the current political branches. Accordingly, future presidents will likely once again face the questions of how they may use prosecutorial discretion generally, and the pardon power specifically, to address the human toll of such laws. Since the founding, the pardon power has been used primarily to forgive individual criminal convictions. Thus the broad civil immigration pardon, which Obama declined to issue, would have raised novel questions regarding the appropriate boundaries the presidential pardon power. Resolution of those previously unexplored questions is necessary to help future presidents determine whether their pardon power can serve as a safety valve to alleviating the disproportionate penalties that our immigration laws have imposed on longtime members of our communities.This article explores the novel concept of a civil immigration pardon. Specifically, it closely examines the language and drafting history of the Pardon Clause, exhaustively reviews early and modern pardon practice and jurisprudence, and considers whether a president could, consistent with the Constitution, use that power to protect some of the largest categories of noncitizens currently at risk of deportation. Ultimately, it argues that that the president possesses the constitutional authority to categorically pardon broad classes of immigrants for civil violations of the immigration laws and to thereby provide durable and permanent protections against deportation. As millions of noncitizens and their families face a historically unprecedented wave of deportations and as traditional mechanisms for policymaking continue to fail, the immigration pardon offers an important tool for future presidents to forgive the civil offenses that result in some of the most unforgiving penalties in our nation's justice system.

The call to end immigration detention has garnered strong support in recent years due to a growing public awareness of its devastating impact on the individuals locked away, their families, and entire communities. Throughout the nation, communities, organizers, advocates, and public officials have demanded the shutdown of Immigration and Customs Enforcement (ICE) detention centers, particularly those operated by private prison companies. However, less attention has been paid to another form of detention that has been insidiously expanding alongside ICE's brick-and-mortar jails: the Intensive Supervision Assistance Program (ISAP), the primary component of ICE's so-called "Alternatives to Detention" program. ISAP surveils, monitors, and restricts immigrants by using invasive and evolving forms of technology. Like much of ICE's sprawling detention system, ISAP is fueled by a multi-billion-dollar contract with the subsidiary of a private prison corporation that profits from detaining and surveilling immigrants. One of the most common and dehumanizing forms of surveillance in ISAP is a GPS enabled ankle monitor that shackles individuals both visibly and invisibly. This report recommends that ICE immediately wind down ISAP and cease its use of electronic ankle shackles, first by removing them from all individuals currently subject to ISAP. To the extent that ankle shackles continue being used while phasing out ISAP, the administration should mandate ICE to track the data needed to prevent discriminatory practices; provide both a clear written justification and review process when deciding to subject an individual to ankle shackles; and allow those subject to ankle shackles to secure employment, participate in family and community activities, and seek medical treatment. This report also recommends a severance of the link between immigration enforcement and service provision through community-based programs, as well as allocation of government funding for community support and legal representation services. As the harms of electronic ankle shackling demonstrate, ISAP is by no means an acceptable reform to the existing detention apparatus; rather it is another form of confinement that must be dismantled alongside physical detention. While the coercive and dehumanizing shackling of humans is unacceptable in any form, the data demonstrating the comparable or superior efficacy of more holistic intervention also lay bare the animus and profit motives at the heart of ICE's shackling regime. Ending shackling is not just good policy; it is an issue of racial, economic, and health justice.