Political Versus Administrative Justice

Abstract

This comment responds to an essay by Rachel Barkow, which insightfully links the decline of mercy in American criminal justice to the rise of a rule-of-law ideal inspired by administrative law. This comment notes the dangers of the administrative, rule-focused, judiciocentric approach to criminal justice. Instead, it suggests a more political approach, with more judicial deference to political actors and less judicial policing of equal treatment.

Keywords: criminal justice, criminal procedure, mercy, pardon, forgiveness, clemency, parole, prosecutors, rule of law, discretion, prosecutors