The Death of Mercy

The source: “The Ascent of the Administrative State and the Demise of Mercy” by Rachel E. Barkow, in ___Harvard Law Review___, March ­2008.

The quality of mercy may not be strained, as Portia said in Shakespeare’s Merchant of Venice, but its quantity certainly ­is—­at least if you’re an accused or con­victed lawbreaker. Parole has been eliminated in many states, and executive clemency is an endan­gered ­species.

“These are punitive, unforgiving times,” writes Rachel E. Barkow, a law professor at New York University. The popularity of ­“three-strikes-and-you’re-out”—the advocacy of locking the door on ­crim­in­als and throwing away the key—­has swept a gener­ation of ­tough-­on-­crime candidates into elected office. They have written into law a range of severe mini­mum sentences, particularly for ­drug-­related ­crimes.

But politics, Barkow argues, does not entirely account for the fact that some two million ­Ameri­cans—­more than one in 100 adults—are behind bars and anoth­er five million are on probation or some other form of supervised release from jail. She looks at the rise of the administrative state, with its accompanying laws and procedures designed to check the powers of government officials, as an important culprit. Government agencies are increasingly operating under strict procedures designed to prevent bureaucrats from rewarding friends and punishing enemies as they implement the likes of housing subsidies and pollution restrictions. The spirit of “administrative law” enjoys public support because of its perceived absolute fairness, and leaches into the judicial branch. If it is effective in limiting the executive branch’s discretion to interpret civil law, why not extend its limits to criminal ­matters?

In effect, Barkow says, this is exactly what is happening. Even without formal limits, presidents and governors have sharply cut their use of executive clemency. The powers of parole boards—once afforded the discretion to be ­merci­ful—­are highly ­circumscribed.

President Richard M. ­Nixon—­himself the recipient of a presi­dential pardon after he was forced from ­office—­granted 36 percent of the petitions he re­ceived for clem­ency for convicted wrongdoers. That number dropped stead­ily, to five percent of petitions granted by President George H. W. Bush, before tick­ing up to six percent for President Bill Clinton. Research­ers have found a similar trend at the state level. And the courts them­selves have placed limits on jury nullification—­“not ­guilty” verdicts in the face of substantial evidence to the ­contrary.

Prosecutors still have considerable leeway to show mercy by simply declining to prosecute a case. They don’t have to follow strict guidelines about when to let somebody off the hook by failing to bring charges, and they don’t have to give reasons for their decision. Even if they are elected as crime-busters, they can’t physically or financially prosecute every infraction and seem to get a pass on their ability to be lenient.

But drafting administrative procedures to guide juries and executives in showing mercy would contradict the most important reason for having discretion to be lenient in individual cases, Barkow con­cludes. The utter impossibility of anticipating every human factor in advance is the very reason for the existence of ­mercy.