The ascent of the Administrative State and the demise of mercy
2008; Harvard Law Review Association; Volume: 121; Issue: 5 Linguagem: Inglês
ISSN
2161-976X
Autores Tópico(s)Legal Education and Practice Innovations
ResumoTABLE OF CONTENTS I. TAMING DISCRETION: THE DEVELOPMENT OF ADMINISTRATIVE LAW AND THE DECLINE OF UNREVIEWABLE POWER 1336 A. The Development of Administrative Law and the Importance of Judicial Review 1336 B. The Threat of Unreviewable Discretion 1339 1. Jury Nullification 1340 2. Executive Clemency 1345 3. Prosecutorial Discretion 1351 II. THE CENTRALITY OF JUDGES: THE RISE OF ADMINISTRATIVE LAW AND THE INCREASE OF JUDICIAL POWER 1355 III. THE LIMITS OF THE BUREAUCRATIC STATE AND THE PLACE FOR MERCY 1358 There are currently more than two million people behind bars in the United States. (1) Over five million people are on probation or some other form of supervised release. (2) Prisoners are serving ever-longer sentences. (3) 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, (4) very little work has focused on the reasons why forms of mercy have been on the decline. (5) 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. (6) 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 unchecked 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 beside 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 unchecked 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. …
Referência(s)