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.
This Essay argues that administrative law has weakened these exercises of mercy in two key respects. First and foremost, the rise of the administrative state has made unchecked discretion an anomaly in the law, and a phenomenon to be viewed with suspicion. The expansion of the administrative state has showcased the dangers associated with the exercise of discretion. Without a check on the power of agencies, benefits could be bestowed and sanctions imposed on the basis of an array of inappropriate factors. Racial discrimination, favoritism to campaign contributors, and cronyism are only a few examples of the numerous extralegal factors that could influence an agency’s un-checked exercise of discretion. The solution has been the curtailment of discretion through judicial review. Courts insist that agencies operate within legally defined boundaries and give explanations for their actions. Unlike the rational basis review that gives legislative acts the benefit of the doubt, the “hard look” review of agency decisions is more skeptical of discretion. 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. Jury nullification and an unqualified executive power to grant clemency sit uneasily be-side an administrative state that faces such scrutiny, for these exercises of mercy are precisely the type of unreviewable exercises of discretion that administrative law seeks to control. This concern about un-checked discretion takes on even greater importance in criminal law because of the many examples in the history of criminal justice where actors have exercised discretion in racially discriminatory ways or to produce racially disparate results.
The rise of administrative law undercuts executive clemency power and jury nullification in a second, related respect: 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. The dominance of agencies has necessarily been accompanied by an increase in statutes that govern those agencies; concomitantly, courts have faced an ever-growing number of regulatory cases involving statutory interpretation. Through their power to ensure that agency actions are consistent with statutes, courts have been given the authority to oversee the entire regulatory state – from the securities market to the environment, from labor relations to emerging technologies. And in exercising this power, courts use a variety of interpretive tools to ensure that individual exercises of agency decisionmaking are consistent with legislative intent. Legal academics and society at large have, in turn, looked to courts to guarantee that laws are fairly applied. In this legal culture, it is viewed as the role of courts, through statutory interpretation, to fix unfair applications of the law. A layperson juror or an elected executive has no obvious expertise in this world of statutes, so it is hard to understand why these actors should be permitted to operate unchecked.
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.