That's the title of an essay in the current Harvard Law Review by Rachel Barkow. LINK Here are two excerpts from the introduction:
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.
And:
This Essay begins in Part I by describing the rise of administrative law and explaining how its central premises are at odds with both clemency and jury nullification — a tension that has led many scholars and jurists to seek limits on these powers. Part I also turns to administrative law to explain why prosecutors’ discretion to be merciful by not bringing charges has not faced the same broad-based criticism as have clemency and nullification, despite their commonalities. Part II then describes how the court-centered focus of administrative law similarly stands at odds with clemency and nullification inasmuch as these exercises of mercy rely on nonjudicial actors to exercise legal power. Part III concludes by highlighting key differences between administrative power and the exercise of mercy in criminal cases and by offering some preliminary thoughts on why unreviewable decisions to grant mercy should still have a place in the criminal justice system.
The entire essay is here, in Adobe .pdf format. The clemency index is here.
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