The Ascent of the Administrative State and the Demise of Mercy
Rachel E. Barkow
New York University School of Law
Harvard Law Review, Vol. 121, 2008
NYU School of Law, Public Law Research Paper No. 08-51
It is not news to anyone familiar with criminal law and sentencing that we live in punitive, unforgiving times. Although scholars have sought to explain the rise in punishment and the incarceration boom of the past few decades, very little work has focused on the reasons why forms of mercy have been on the decline. Specifically, scholars have not done much to explore why the unreviewable power to be merciful through pardons and nullification is currently looked upon with such disfavor. While the same political climate that produces greater punishment also depresses mercy, that account is an incomplete one. As this Essay explains, skepticism about the jury's nullification power and executive clemency has its roots in another development: the rise of the administrative state and the key concepts of law that have emerged alongside it.
This Essay argues that administrative law weakens these exercises of mercy in two key respects. First, with the rise of administrative law, our legal culture has come to view unreviewable discretion to decide individual cases as the very definition of lawlessness, and a variety of doctrines ensure that almost all exercises of agency discretion are reviewable. Second, the development of the administrative state is a significant part of the reason that our legal culture focuses on the courts - and courts alone - to prevent unfair applications of the law. Jury nullification and an unqualified executive power to grant clemency sit uneasily beside this administrative state because both forms of mercy give untrained individuals unreviewable power to make important decisions.
Despite this tension with administrative law, this Essay concludes by highlighting key differences between administrative power and the exercise of mercy in criminal cases and offering some preliminary thoughts on why unreviewable decisions to grant leniency should still have a place in the criminal justice system.
Keywords: Criminal Law, Mercy, Jury Nullification, Clemency, Pardons, Administrative Law, Discretion
Date posted: October 4, 2007 ; Last revised: December 17, 2008