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October 9, 2007

Interesting (though incomplete) piece on administrative law and mercy

As I have said before, Professor Rachel Barkow's scholarly work is always thought-provoking because, in addition to being a sentencing guru, she brings an important legal process perspective to the issues she explores.  I thus read with great interest her latest piece, now available here from SSRN, entitled "The Ascent of the Administrative State and the Demise of Mercy."  Here is the start of the abstract:

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 is a great read, but it feels a bit incomplete.  As the abstract suggests, the essay mostly focuses on jury nullification and executive clemency.  But, even before the rise of the modern administrative state, nullification and clemency were relatively marginal aspects of the exercise of mercy in most criminal justice systems.  Practically speaking, over the last century, the most mercy has been delivered by judges at non-capital sentencing, by juries in capital sentencing, and by parole board in release decision-making.

I highlight this point in part because there are powerful modern administrative law stories surrounding the application of mercy now by modern judges, juries and parole boards at sentencing.  All of these decision-makers have been regulated in modern times by some form of administrative guidelines (in the form of judicial sentencing guidelines, or guided discretion rules in capital sentencing, or parole guidelines).  I hope Rachel can and will explore other robust connections between administrative law and mercy in further work.

October 9, 2007 at 05:02 PM | Permalink


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Prof. Barkow's position on jury nullification does not plow fresh ground. Both Randy E. Barnett and I have made the same or similar arguments, Randy in 1999 (http://jurist.law.pitt.edu/lawbooks/revoct99.htm#Barnett) and I in 1998.

However, other factors more powerful than the administrative state come into play, which Prof. Barkow ignores. We must also consider the increasingly technocratic manner in which non-administrative law is taught and applied (something which is surely associated with the growth of the technocratic administrative state); the practical demise of natural law theory; and the inclination of modern Americans to obey malevolent authority (i.e., the Milgram effect.)

All of these dehumanizing factors work against lenity; the juror who believes mercy is an appropriate response is struck down on every approach. The jury, from its historical norm as the conscience of the community, is now treated as merely a calculator which, from a given evidentiary set, can have only one proper verdict.

It is because of these factors that many lawyers have found jury nullification works best when it works subliminally. Jurors, given conflicting evidence and appropriate encouragement, will often choose to believe the evidence that gives them the verdict they are most comfortable with. Such jurors in effect nullify without ever being aware that they have done so, as their verdict is more the result of the equitable factors than it is of the strict application of law and fact.

Posted by: Clay S. Conrad | Oct 10, 2007 10:45:48 AM

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