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March 26, 2008

"The Demise of Mercy" now in print

In this post last year I noted the thought-provoking piece from Rachel Barkow entitled "The Ascent of the Administrative State and the Demise of Mercy."  The piece is now in print as this essay in the latest issue of the Harvard Law Review, and here is the first part of the abstract:

There are currently more than two million people behind bars in the United States.  Over five million people are on probation or some other form of supervised release.  Prisoners are serving ever-longer sentences.  Presidential and gubernatorial grants of clemency are rare events. The use of jury nullification to check harsh or overbroad laws is viewed by judges and other legal elites with suspicion. These are punitive, unforgiving times.

Although a great deal of scholarship has sought to explain the incarceration boom and the rise in punishment, 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 two of the last remaining forms of the unreviewable power to be merciful — executive clemency and jury nullification — are currently looked upon with such disfavor.  Perhaps this question has been ignored on the theory that the rise in punishment and the decline in mercy are two sides of the same coin, both outgrowths of the same phenomenon.  That is, the political climate that produces greater punishment must also depress mercy.  While it is true that the political economy of punishment is an important reason for the decline in nullification and clemency that should not be discounted or ignored, it is not a complete explanation.  As this Essay explains, skepticism about jury nullification and executive clemency has its roots in another development as well: the rise of the administrative state and the key concepts of law that have emerged alongside it.

March 26, 2008 at 12:52 AM | Permalink


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Thank you for this. It is worth spending some time thinking about. The administrative state is here and it seems to me that it is related to victim justice in some way. Holding individuals and entities responsible for every out come sounds reasonable, but it also involves consequences for every unfavorable or perhaps uncomfortable or inconvenient outcome. These consequences or punishments are the ever growing problem. It is intrusive, and justifies itself.

Posted by: beth curtis | Mar 26, 2008 11:03:09 PM

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