The ascent of the administrative state and the demise of mercy

Harvard Law Review

Volumn 121, Issue 5, 2008, Pages 1332-1365

  Barkow, Rachel E ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 41649086394     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (283)

1. Bureau of Justice Statistics, U.S. Dep't of Justice, Prison Statistics (Dec. 16, 2007), http://www.ojp.usdoj.gov/bjs/prisons.htm (noting that at the end of 2006, there were 2,258,983 prisoners in federal and state prisons and in local jails).
2. Bureau of Justice Statistics, U.S. Dep't of Justice, Probation and Parole Statistics (Dec. 5, 2007), http://www.ojp.usdoj.gov/bjs/pandp.htm (reporting that at the end of 2006, more than five million people were under the jurisdiction of federal, state, or local parole or probation; of these, about 4,237,000 were on probation, and 798,200 on parole).
3. See William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780, 839 (2006) (noting that average sentences are "significantly higher than in previous periods in this country").
4. See, e.g., DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY (2001) (describing cultural and sociological factors that are driving the rise in punishment);
5. JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE 53-55 (2003) (explaining that American punishment is harsher than European punishment because of America's democratic history and its zealous commitment to formal equality in sentencing);
6. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505 (2001) (examining the political incentives that lead to overcriminalization and harsh sentencing).
7. Many scholars have thoughtfully examined the theoretical relationship between mercy and justice. See, e.g., KATHLEEN DEAN MOORE, PARDONS: JUSTICE, MERCY AND THE PUBLIC INTEREST 131-78, 188-92 (1989) (evaluating when exercises of mercy are consistent with justice and when they are not);
8. Dan Markel, Against Mercy, 88 MINN. L. REV. 1421, 1453-73 (2004) (arguing that mercy is incompatible with retributive justice);
9. Jeffrie Murphy, Mercy and Legal Justice, in JEFFRIE G. MURPHY & JEAN HAMPTON, FORGIVENESS AND MERCY 162, 169-80 (1988) (discussing the relationship between mercy, individuation, and justice);
10. Carol S. Steiker, Tempering or Tampering?, in FORGIVENESS, MERCY, AND CLEMENCY 16, 22-30 (Austin Sarat & Nasser Hussain eds., 2007) (summarizing competing views on the relationship between mercy and justice);
11. Robert Weisberg, Apology, Legislation, and Mercy, 82 N.C. L. REV. 1415, 1417-21 (2004) (noting that recent scholarship has criticized mercy as inconsistent with various theories of justice, including retributivist and restorative justice). This Essay takes no position on the proper way to characterize mercy and its relationship to individualized justice; rather, the term "mercy" is used here simply to encompass jury nullification by acquittal and executive clemency, regardless of the bases for these decisions.
12. There are, of course, other actors who have the power to deliver mercy in the criminal justice system. Parole boards, where they exist, can release offenders, and judges can exercise discretion in some cases to lessen sentences. Like jury nullification and executive clemency, these exercises of mercy have also faced criticism, and that criticism has strong links to administrative law concerns. Because of space limitations, this Essay largely ignores those forms of mercy and focuses on nullification and pardons for two reasons. First, jury nullification and executive clemency are enshrined in the Federal Constitution and many state constitutions, so those forms of mercy cannot simply be abolished or ignored. Parole can be and has been abolished in many jurisdictions, and judicial discretion over sentencing can be and has been eliminated in many jurisdictions through mandatory sentencing laws or guidelines. Jury nullification and clemency therefore represent the last remaining forms of unreviewable mercy in some places, and as a result, they have taken on added importance. Second, the link between the administrative state and the diminished status of jury nullification and clemency is less obvious than the link between the administrative state and reforms in parole and judicial sentencing. This Essay therefore seeks to explain an otherwise overlooked connection between administrative law and criminal justice. The use of commissions and boards to regulate sentencing and parole through guidelines is directly tied to administrative law, so less explanatory work is necessary. But to the extent that the link is clear in the case of parole and judicial sentencing, it further supports the claims made here. Administrative law is a pervasive force in criminal law today, and its effect on a variety of forms of mercy should not be ignored.
13. See, e.g., Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 462-63 (2003) (explaining that accountability is a disproportionate focus of administrative law scholarship);
14. Jerry L. Mashaw, Reinventing Government and Regulatory Reform: Studies in the Neglect and Abuse of Administrative Law, 57 U. PITT. L. REV. 405, 406-16 (1996) (emphasizing the importance of preserving political accountability in the face of the executive and legislative reform of the administrative state in the 1990s);
15. Richard B. Stewart, The Global Regulatory Challenge to U.S. Administrative Law, 37 N.Y.U. J. INT'L L. & POL. 695, 695-709 (2005) (examining the threat to agency accountability posed by global regulatory regimes).
16. Some scholars remain unconvinced that agencies are constitutional. See, e.g., Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1231-49 (1994) (arguing that the post-New Deal administrative state is unconstitutional).
17. See 5 U.S.C. § 706(2)(A) (2000).
18. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983);
19. Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 417-20 (1971).
20. 5 U.S.C. § 552 (2000 & Supp. IV 2004),
21. amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524.
22. 5 U.S.C. app. §§ 1-16 (2000).
23. For a summary of these and other requirements, see Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989, 1021-23 (2006).
24. Id. at 1023-24;
25. see also Mark Fenster, The Birth of a "Logical System": Thurman Arnold and the Making of Modern Administrative Law, 84 OR. L. REV. 69, 82-83, 89 (2005) (noting the importance of judicial review and agency procedures to the acceptance of the administrative state by early administrative law scholars);
26. Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 HARV. L. REV. 1193, 1248 (1982) (describing the APA as a "working compromise, in which broad delegations of discretion were tolerated as long as they were checked by extensive procedural safeguards");
27. Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1671-81 (1975) (noting the importance of judicial review, procedural safeguards, and "reasoned consistency" to the acceptance of agency discretion).
28. LSU Libraries Federal Agencies Directory (July 23, 2007), http://www.lib.lsu.edu/gov/fedgov.html (listing more than 800 executive agencies and more than 100 independent agencies).
29. 29 U.S.C. § 651(b) (2000) (OSHA).
30. 42 U.S.C. § 4321 (2000) (EPA).
31. For example, even in a state as small as Connecticut or as sparsely populated as North Dakota, there are scores of agencies. See State of Connecticut, Index of AU State Agencies (Nov. 27, 2007), http://www.ct.gov/ ctportal/cwp/view.asp?a=843&q=246466; State of North Dakota, Agency Index, http://www.nd.gov/agency.htm (last visited Feb. 9, 2008).
32. See Alfred C. Aman, Jr., Introduction: Symposium on Globalization, Accountability, and the Future of Administrative Law, 8 IND. J. GLOBAL LEGAL STUD. 341, 341-46 (2001) (describing the evolution of global administrative law);
33. Benedict Kingsbury et al., The Emergence of Global Administrative Law, LAW & CONTEMP. PROBS., Summer-Autumn 2005, at 15 (surveying issues in global administrative law).
34. Administrative law has become such a bedrock of our legal system that top law schools, such as NYU and Harvard, currently mandate that first-year students get an overview of the basic doctrines.
35. Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237, 267-73 (2002).
36. See, e.g., INS v. St. Cyr, 533 U.S. 289, 298 (2001) (noting the "strong presumption in favor of judicial review of administrative action");
37. id. at 327 (Scalia, J., dissenting) (arguing that the Court "fabricates a superclear statement, 'magic words' requirement for the congressional expression" to preclude review that is "unjustified in law and unparalleled in any other area of our jurisprudence");
38. Webster v. Doe, 486 U.S. 592, 603 (1988) (Congress's intent to preclude review "must be clear");
39. Bartlett v. Bowen, 816 F.2d 695, 699-700 (D.C. Cir. 1987) ("[I]t has become something of a time-honored tradition for the Supreme Court and lower federal courts to find that Congress did not intend to preclude altogether judicial review of constitutional claims in light of the serious due process concerns that such preclusion would raise.").
40. See 5 U.S.C. § 701(a)(2) (2000);
41. see also Melissa M. Berry, Seeking Clarity in the Federal Habeas Fog: Determining What Constitutes "Clearly Established" Law Under the Antiterrorism and Effective Death Penalty Act, 54 CATH. U. L. REV. 747, 791 n.280 (2005) (noting that the "committed to agency discretion by law" doctrine has been interpreted narrowly).
42. Indeed, even though the Supreme Court concluded in Heckler v. Chaney, 470 U.S. 821 (1985), that agency decisions not to bring enforcement actions are committed to agency discretion,
43. id. at 837-38, that exception has been narrowly construed.
44. See, e.g., Massachusetts v. EPA, 127 S. Ct. 1438, 1459 (2007) (distinguishing decisions not to bring enforcement actions from refusals to promulgate rules and holding that the latter are subject to judicial review).
45. See, e.g., Hampton v. Mow Sun Wong, 426 U.S. 88, 116 (1976) ("[D]ue process requires [agency decisions to] be justified by reasons ....");
46. Pollock v. Baxter Manor Nursing Home, 706 F.2d 236, 237 (8th Cir.) (McMillian, J., dissenting) ("[D]ue process protects against error based upon inaccurate or incomplete information by requiring the government to comport with regularized procedures that are subject to judicial review."), rev'd on reh'g, 716 F.2d 545 (8th Cir. 1983) (per curiam).
47. See, e.g., Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. REV. 1657, 1658-61 (2004) (arguing that agency inaction raises the same concerns for administrative arbitrariness as does agency action and that lack of review of inaction is "inconsistent with the founding principles of the administrative state");
48. Cass R. Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U. CHI. L. REV. 653, 683 (1985) ("Whatever the defects of judicial review, they do not justify a one-way ratchet against regulation, which may skew regulatory processes in directions inconsistent with the governing statute.").
49. See, e.g., Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. REV. 1741, 1742-43, 1751-58 (1999);
50. Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432, 1480 (1988).
51. See, e.g., THOMAS M. FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS: DOES THE RULE OF LAW APPLY TO FOREIGN AFFAIRS? 4-5 (1992) (arguing that the "abdicationist tendency" in foreign affairs is "wholly incompatible with American constitutional theory");
52. MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 320 (1990) ("To permit the Executive to proceed [in foreign-affairs decisionmaking] unencumbered by judicial review would work a radical reallocation of constitutional power.").
53. Unreviewable judicial discretion over sentencing has faced similar criticism for the same reasons, sparking the movement toward guidelines. See Rachel E. Barkow, Administering Crime, 52 UCLA L. REV. 715, 741-42 (2005).
54. Andrew D. Leipold, Rethinking Jury Nullification, 82 VA. L. REV. 253, 307 (1996) (emphasis omitted) (footnote omitted).
55. Rebecca Love Kourlis, Not Jury Nullification; Not a Call for Ethical Reform; But Rather a Case for Judicial Control, 67 U. COLO. L. REV. 1109, 1111-12 (1996).
56. See Darryl K. Brown, Jury Nullification Within the Rule of Law, 81 MINN. L. REV. 1149, 1150-51 (1997) (describing criticisms of nullification).
57. The Interstate Commerce Commission was created by the Interstate Commerce Act of 1887, ch. 104, 24 Stat. 379 (codified as amended in scattered sections of 49 U.S.C).
58. 156 U.S. 51 (1895).
59. Id. at 101 ("Public and private safety alike would be in peril, if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court and become a law unto themselves.").
60. Although the "expertise" rationale for agency decisionmaking was not dominant until the New Deal era, see Stewart, supra note 14, at 1677-78, "faith in the ability of experts to develop effective solutions to the economic disruptions created by the market system ... served as a foundation for early railroad regulation and as a basic tenet of Progressive thought" at the end of the nineteenth century.
61. Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189, 1266-67 (1986).
62. Sparf, 156 U.S. at 101-02.
63. Id. at 103.
64. See id. at 77 (citing approvingly the notion that judges should decide questions of law for the sake of "a uniform exposition and interpretation of the law of the United States").
65. Id. at 107 (quoting United States v. Morris, 26 F. Cas. 1323, 1336 (Curtis, Circuit Justice, C.C.D. Mass. 1851) (No. 15,815)). Sparf was a critical turning point in the relationship between the jury and legal elites -particularly judges. The case has stood as a key precedent for later limits on jury nullification that were the outgrowth of other suspicions of jury power.
66. See KERMIT L. HALL, THE MAGIC MIRROR: LAW IN AMERICAN HISTORY 211-25 (1989) (discussing the professionalization of lawyers in the late nineteenth century).
67. "The courts that have considered the question have almost uniformly held that a criminal defendant is not entitled to a jury instruction [on nullification]," United States v. Trujillo, 714 F.2d 102, 105 (11th Cir. 1983);
68. see also Dianah L. Pressley, Recent Development, Jury Nullification: The Inchoate Power, 20 AM. J. TRIAL ADVOC. 451 (1996-1997) (collecting cases opposing instructions on jury nullification).
69. United States v. Dougherty, 473 F.2d 1113, 1134 (D.C Cir. 1972). The Court also cited approvingly Roscoe Pound's worry about jury power based on "the invalidity of the popular assumption that anyone is competent for the task of administration of justice." Id. at 1134 n.46.
70. See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524, 541 (1978) (concluding that the D.C. Circuit rejected the agency's decision because of what it perceived to be "inadequacies of the procedures employed in the rulemaking proceedings" and reversing the circuit court because "reviewing courts are generally not free to impose [procedures] if the agencies have not chosen to grant them."),
71. rev'g Natural Res. Def. Council, Inc. v. U.S. Nuclear Regulatory Comm'n, 547 F.2d 633, 645 (D.C. Cir. 1976).
72. See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970) ("[The court's] supervisory function calls on the court to intervene ... if the court becomes aware ... that the agency has not really taken a 'hard look' at the salient problems, and has not genuinely engaged in reasoned decision-making." (footnote omitted)).
73. See cases cited supra note 10.
74. See United States v. Thomas, 116 F.3d 606, 614-18 (2d Cir. 1997);
75. People v. Feagin, 40 Cal. Rptr. 2d 918, 923 (Ct. App. 1995).
76. See Nancy J. King, Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom, 65 U. CHI. L. REV. 433, 440-41 (1998) (describing the prosecution of a juror who failed to reveal during voir dire her involvement in an organization that seeks to inform jurors about their power to nullify). That juror's contempt conviction was later overturned on appeal.
77. People v. Kriho, 996 P.2d 158, 164-65, 178 (Colo. Ct. App. 1999).
78. See King, supra note 47, at 492-94.
79. See Kristen K. Sauer, Note, Informed Conviction: Instructing the Jury about Mandatory Sentencing, 95 COLUM. L. REV. 1232, 1242 (1995);
80. see also Shannon v. United States, 512 U.S. 573, 579 (1994). Recently, the Court has recognized that the Constitution's jury guarantee fore-closes legislative attempts to allow judges to increase the maximum sentence to which a defendant is exposed on the basis of judicial as opposed to jury factfinding.
81. See Apprendi v. New Jersey, 530 U.S. 466, 485-90 (2000) (holding that any fact other than the offender's recidivism that increases a crime's penalty beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt);
82. Blakely v. Washington, 542 U.S. 296, 301-08 (2004) (requiring a jury finding of facts that increase the defendant's maximum sentence exposure even if the facts that increase the maximum sentence exposure are contained in statutory sentencing guidelines);
83. Cunningham v. California, 127 S. Ct. 856, 868-71 (2007) (finding unconstitutional a sentencing scheme granting power to judges to find aggravating circumstances that increase a criminal penalty beyond the maximum sentence a judge may impose without additional factual findings). Nevertheless, the Court has not articulated a theory as to why the jury has such a power when laws mandate an increase but lacks the power when laws give judges discretion to increase sentences. I have argued elsewhere that the only theory that explains the different treatment is that judges can correct failings in discretionary laws, but mandatory laws require the corrective of jury nullification.
84. Rachel E. Barkow, Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. PA. L. REV. 33, 85-86 (2003). The Court's reluctance to embrace this logic is likely a reflection of its ambivalence about or disdain for jury nullification. Moreover, recent decisions have cut back on the sweep of the Court's proclaimed respect for the jury.
85. See Rita v. United States, 127 S. Ct. 2456 (2007);
86. United States v. Booker, 543 U.S. 220, 244-68 (2005) (Breyer, J., delivering the opinion of the Court in part).
87. See, e.g., Molly McDonough, Ballot Initiatives Shot Down, A.B.A. J. E-REPORT, Nov. 8, 2002, LEXIS, ERPORT File (noting that only twenty percent of voters in South Dakota supported a law that would allow defendants to argue that a law under which they were charged was unfair). Bills that would require judges to instruct juries about their power to nullify have also failed to pass in many other states.
88. See Fully Informed Jury Ass'n, Mission Statement (May 9, 2006), http://www.fija.org/index.php?page-staticpage&id=3 (indicating that despite the efforts of an organization dedicated to nullification to get legislation passed, none of the proposed bills has been enacted).
89. See, e.g., Brown, supra note 31, at 1149, 1151 (noting that "criticism of perceived nullification verdicts has reemerged in the wake of several well publicized acquittals");
90. Mona Charen, Can No One Be Convicted of Anything Anymore?, ST. LOUIS POST-DISPATCH, Jan. 31, 1994, at 7B (criticizing the application of jury nullification in high-profile cases);
91. James P. Pinkerton, Nullification: Wrong in 1832 and in 1995, L.A. TIMES, Oct. 12, 1995, at Bg ("In the wake of the Unabomber, Ruby Ridge, Waco, Oklahoma City and now the Arizona train terror, homegrown law-nullifying crazies on all sides have eroded the common ground upon which our civil society rests.").
92. It is also unclear whether the increased discomfort with jury nullification correlates with greater reluctance on the part of juries to nullify in actual cases. Because jurors do not give reasons for their acquittals, it is not possible to be sure that a vote in any case can fairly be labeled as nullification. Some empirical studies have attempted to measure this by asking judges for their views on whether juries have nullified. See, e.g., HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 429-30 & tbl.112 (Univ. of Chi. Press 1971) (1966) (finding that 9% of acquittals were viewed as meritless in the estimation of the responding judges);
93. Daniel Givelbar, Lost Innocence: Speculation and Data About the Acquitted, 42 AM. CRIM. L. REV. 1167, 1184 n.83 (2005) (citing a recent National Center for State Courts study that found that judges were very dissatisfied with jury verdicts of acquittal in 5.5% of the cases). Although these measures indicate only a slight decline in nullification rates between the period before hard look review of agencies was established and a time after it had been in place for years, one must be careful in interpreting these studies. Judges' reported disagreement with jury verdicts may be based on a reasonable disagreement over how to interpret the law or its application to the facts in the case, so these measures are imperfect proxies for nullification in the absence of a statement of reasons by the jury itself. In addition, it is not sufficient to look only at cases that go to trial. If prosecutors and defense lawyers believe that nullification is less likely, this belief will influence plea bargaining as well as trials. So, even if these studies were accurately measuring nullification at trial, they might be missing the fact that the cases not going to trial are being influenced by litigants' views that jury nullification is less likely. Defendants might be less willing to risk trial and more willing to accept less favorable plea deals than in the past, so if one looked at the cases not making their way to trial, one may find a difference between the time before courts more aggressively reviewed agency decisionmaking and afterward.
94. For example, when judges refused to inform juries of their power to nullify, they undoubtedly believed that refusal would curtail nullification.
95. U.S. CONST, art. II, § 2, cl. 1.
96. Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1867). The Framers rejected proposals that would have limited the President's power to pardon by requiring the consent of the Senate or by exempting treason from the list of pardonable offenses.
97. See Todd David Peterson, Congressional Power over Pardon & Amnesty: Legislative Authority in the Shadow of Presidential Prerogative, 38 WAKE FOREST L. REV. 1225, 1228-35 (2003) (discussing the history of the pardon power).
98. United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872).
99. Ex parte Grossman, 267 U.S. 87, 120 (1925) ("The Executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress.").
100. The Court has noted that pardons can be reviewed to ensure that the granting of the pardon does not violate a substantive protection in the Constitution. See Brian M. Hoffstadt, Normalizing the Federal Clemency Power, 79 TEX. L. REV. 561, 594 (2001) (noting the constitutional limits on the pardon power recognized by the courts);
101. James N. Jorgensen, Note, Federal Executive Clemency Power: The President's Prerogative To Escape Accountability, 27 U. RICH. L. REV. 345, 361-62 (1993) (stating that courts will "review the president's exercise of clemency power in order to ensure that it is in compliance with the Constitution").
102. Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981).
103. "Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law." Ex parte Grossman, 267 U.S. at 120;
104. see also Hoffstadt, supra note 58, at 585 ("Clemency was conceived in part as a way to lighten, in appropriate circumstances, the sting of harsh sentences required by sentencing laws.");
105. The Supreme Court, 1974 Term-Leading Cases, 89 HARV. L. REV. 49, 63 (1975) [hereinafter Leading Cases] (describing the pardoning power as a "means of achieving 'individualized' justice in situations where the law is otherwise inflexible" that "may be used to mitigate or quash severe sentences that have resulted from prejudice or misunderstanding"), Presidents may also use the pardoning power to "quell[] public unrest," for instance by granting amnesty to those involved in civil disturbances.
106. Leading Cases, supra, at 63.
107. See Hoffstadt, supra note 58, at 567 ("There is therefore a stark contrast between the level of discretion enjoyed by the Executive in clemency decisions and the amount of discretion with which he has been entrusted in making executive decisions regulated by the APA and FOIA.").
108. The pardon power has faced criticism since the American revolutionary period because of its tension with America's commitment to egalitarianism. See WHITMAN, supra note 4, at 181. But the exercise of the pardon power did not plummet until after significant developments in administrative law, such as hard look review by judges - which is itself an outgrowth of America's commitment to egalitarianism and a concern with unchecked discretion.
109. 523 U.S. 272 (1998).
110. See id. at 288-89 (O'Connor, J., concurring in part and concurring in the judgment);
111. id. at 291 (Stevens, J., concurring in part and dissenting in part). Justice Kennedy was not among those five Justices, He recently urged the American Bar Association to "consider a recommendation to reinvigorate the pardon process." Justice Anthony M. Kennedy, Keynote Speech at the American Bar Association Annual Meeting (Aug. 9, 2003), available at http://www.supremecourtus.gov/publicinfo/speeches/sp_08-09-03.html. The ABA responded with some modest recommendations for increasing pardons on the basis of post-sentencing circumstances.
112. JUSTICE KENNEDY COMM'N, AM. BAR ASS'N, REPORT TO THE HOUSE OF DELEGATES, Resolution 121C (2004), available at http://www.abanet.org/media/kencomm/rep121c.pdf.
113. Woodard, 523 U.S. at 288 (O'Connor, J., concurring in part and concurring in the judgment).
114. Id. at 289 (emphasis omitted).
115. Id.
116. Id. at 292 (Stevens, J., concurring in part and dissenting in part). Justice Stevens's view may be limited to clemency proceedings in death penalty cases.
117. See id. at 293-95.
118. "To the extent that scholars think about it, pardon is regarded as a constitutional anomaly...." Margaret Colgate Love, Reviving the Benign Prerogative of Pardoning, LITIGATION, Winter 2006, at 25, 25.
119. Hoffstadt, supra note 58, at 597.
120. Margaret Colgate Love, The Pardon Paradox: Lessons of Clinton's Last Pardons, 31 CAP. U. L. REV. 185, 217 (2003);
121. see also Victoria J. Palacios, Faith in Fantasy: The Supreme Court's Reliance on Commutation To Ensure Justice in Death Penalty Cases, 49 VAND. L. REV. 311, 332 (1996) ("[T]he ultimate critiques are that commutation is discretionary and operates largely without standards or review." (footnote omitted)).
122. Coleen E. Klasmeier, Note, Towards a New Understanding of Capital Clemency and Procedural Due Process, 75 B.U. L. REV. 1507, 1535 (1995).
123. Murphy, supra note 5, at 181;
124. see also Daniel J. Freed & Steven L. Chanenson, Pardon Power and Sentencing Policy, 13 FED. SENT'G REP. 119, 124 (2000-2001) (preferring rules to guide the discretion of those who can mitigate sentences);
125. Michael Heise, Mercy by the Numbers: An Empirical Analysis of Clemency and Its Structure, 89 VA. L. REV. 239, 254 (2003) (noting that some critics of clemency power "view the act of pardoning [as] anachronistic in a legal regime that dwells on rules and is wary of discretion");
126. Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 TEX. L. REV. 569, 622-24 (1991) (recommending a clemency commission that would follow guidelines and give reasons for its decisions);
127. Markel, supra note 5, at 1432, 1477 (advocating for judicial review of pardons to make sure they are not given for "arbitrary and capricious reasons").
128. For examples of proposed restrictions on pardons, see S. 2042, 106th Cong. (2000); H.R. 3626, 106th Cong. (2000);
129. S.J. Res. 3, 106th Cong. (1999);
130. and H.R.J. Res. 32, 103d Cong. (1993).
131. See also William F. Duker, The President's Power To Pardon: A Constitutional History, 18 WM. & MARY L. REV. 475, 537 (1977) (discussing a constitutional amendment proposed by Senator Walter Mondale that would have rendered pardons ineffective if two-thirds of each house of Congress voted to disapprove the pardon).
132. For a discussion of historical instances of congressional oversight hearings of the presidential pardon process, see Peterson, supra note 55, at 1260-62, 1265-66.
133. See, e.g., Kurt Eichenwald & Michael Moss, The Privilege of Kings Becomes That of Presidents, N.Y. TIMES, Jan. 29, 2001, at A18 (quoting an expert on pardons stating that "[i]t doesn't fit into the checks and balances concept" because it "appears to be almost an unfettered power");
134. Kathleen Dean Moore, Op.-Ed., When Mercy Weakens Justice, N.Y. TIMES, Aug. 10, 1989, at A23 ("Because pardons single people out for special treatment, every pardon is potentially... a violation of the principle of equal treatment under the law.");
135. John Tierney, Just Forgive, and Forget the Big Bucks, N.Y. TIMES, Feb. 23, 2001, at B1 (noting that "it's strange that any president has the power to arbitrarily overrule the judicial system").
136. Margaret Colgate Love describes the "popular view of the pardon power as a remnant of tribal kingship, rather than an integral part of our constitutional scheme." Love, supra note 71, at 185. Not all accounts are negative. Occasionally newspapers highlight particular cases that merit clemency.
137. See, e.g., Alan Berlow, What Happened in Norfolk?, N.Y. TIMES, Aug. 19, 2007, § 6 (Magazine), at 36 (arguing for clemency for a prisoner in Virginia);
138. Jim Dwyer, One Man's Plea for Mercy, with a Recent Precedent in Mind, N.Y. TIMES, July 7, 2007, at B1 (laying out the case for a New York man's pardon);
139. Richard B. Schmitt, An Epic Fight for Clemency, L.A. TIMES, Sept. 15, 2007, at A1 (favorably describing one of President Bush's commutations).
140. See Margaret Colgate Love, Fear of Forgiving: Rule and Discretion in the Theory and Practice of Pardoning, 13 FED. SENT'G. REP. 125, 125 (2000-2001) (noting that from early on in the nation's history, "pardon was pressed into service as a regular player in the federal justice system" and "the meat and potatoes of pardoning was the ordinary criminal case in which the legal system had produced too harsh a result").
141. Parole and probation took over some of the functions of pardons in the 1930s, but pardons "remained vital through the 1970's." Id. at 125-26.
142. President Nixon granted 36% of his petitions for clemency, President Ford granted 27%, President Carter granted 22%, President Reagan granted 12%, President George H.W. Bush granted 5%, and President Clinton granted 6%. See U.S. Dep't of Justice, Presidential Clemency Actions by Administration: 1945 to 2001, http://www.usdoj.gov/pardon/ actions_administration.htm (last visited Feb. 9, 2008). Before his final year in office, President Clinton had granted only 3% of the clemency applications received during his administration.
143. See id.
144. 37,
145. one of which was the commutation of I. Lewis Libby's sentence, Michael Kranish, Bush Not Ruling Out a Pardon for Libby, BOSTON GLOBE, July 4, 2007, at A1.
146. President Bush's pardons are "the fewest pardons of any president [serving more than one term] since World War II." Associated Press, Bush Issues Pardons, but to a Relative Few, N.Y. TIMES, Dec. 22, 2006, at A31.
147. See Daniel T. Kobil, Should Mercy Have a Place in Clemency Decisions?, in FORGIVENESS, MERCY, AND CLEMENCY, supra note 5, at 36, 37 (citing a survey of all commutations from 1995 to 2003 that found that "most states averaged fewer than one hundred commutations per state, with thirty-four states ... having dispensed twenty or fewer");
148. Eric R. Johnson, Student Article, Doe v. Nelson: The Wrongful Assumption of Gubernatorial Plenary Authority over the Pardoning Process, 50 S.D. L. REV. 156, 179 (2005) (noting that "[a] similar downward trend" to the one at the federal level "can be found at the state level").
149. Love, supra note 69, at 26.
150. Clifford Dorne Si Kenneth Gewerth, Mercy in a Climate of Retributive Justice: Interpretations from a National Survey of Executive Clemency Procedures, 25 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 413, 433, 437 (1999) (noting that some states have "lengthy lists" of types of offenses that are ineligible for pardons, that victim notice requirements tend to make states more reluctant to grant pardons, and that these requirements "fit well within the 'get tough on crime' ideology").
151. "The main concern that surfaced in light of the Clinton pardons is that President Clinton bypassed the normal pardon procedures ...." Paul J. Haase, Note, "Oh My Darling Clemency": Existing or Possible Limitations on the Use of the Presidential Pardon Power, 39 AM. CRIM. L. REV. 1287, 1298 (2002);
152. see also Kurt Eichenwald & Michael Moss, Rising Numbers Sought Pardons in Last Two Years, N.Y. TIMES, Jan. 29, 2001, at A1 (noting that "several legal experts said the midnight rush by Mr. Clinton was deeply troubling").
153. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289 (1998) (O'Connor, J., concurring in part and concurring in the judgment).
154. Love, supra note 71, at 188.
155. Other factors are at play as well. For example, politics helps drive the creation of pardon boards because boards provide political insulation for governors. Boards are also useful to address the ever-expanding criminal caseload. Cf. CHRISTEN JENSEN, THE PARDONING POWER IN THE AMERICAN STATES 11, 23 (1922) (noting that boards were created in many states because of the governor's increased workload). To the extent that regulations aim to limit discretion and regularize the process, however, the primary motivating factor is the same one that drives administrative law: controlling discretion.
156. See id. (noting boards were also created based on "a feeling in a number of states that the clemency power had not been wisely administered by the governor" and that "the system needed further regulation and safeguarding").
157. See Dorne & Gewerth, supra note 81, at 427-28 (finding that twenty-six states "allow the governor to make a pardon decision with the a priori non-binding advice of a board" and that nine states "have a shared power model where the governor actually sits on the pardon board" or "in some other way makes the decision in concert with members of the board").
158. Id. at 427.
159. Id. at 425.
160. See generally JENSEN, supra note 85, at 11-16 (summarizing creation of advisory boards in states in the late nineteenth and early twentieth centuries).
161. See, e.g., Act of May 25, 1967, Pub. Act No. 152, §§ 48-55, 1967 Conn. Pub. Acts 185, 201-05 (codified as amended in scattered sections of CONN. GEN, STAT. tit. 54, pt. III) (creating a Connecticut council of correction and a board of parole);
162. Ala. Bd. of Pardons and Paroles, History of the Agency, http://www.pardons.state.al.us/ALABPP/Main/History.html (last visited Feb. 9, 2008) (describing the Alabama legislature's creation of an independent board in 1939);
163. Ga. State Bd. of Pardons and Paroles, History of Parole in Georgia, http://www.pap.state.ga.us/opencms/export/sites/default/home/history_of_parole. html (last visited Feb. 9, 2008) (noting that Georgia created "an independent agency to administer executive clemency" in 1943).
164. President McKinley signed the first federal pardon regulations in 1898. Love, supra note 71, at 190 n.15. The Interstate Commerce Commission was established by the Interstate Commerce Act of 1887.
165. See supra note 32. Federal pardon regulations are merely advisory, but they act as important political limits because the President faces condemnation for ignoring them.
166. See King, supra note 47, at 455 (noting similarities among the jury's power to nullify, the President's power to pardon, and the executive's power not to prosecute).
167. See Markel, supra note 5, at 1439 n.57 (noting that in fiscal year 1976, federal prosecutors declined to bring charges in more than half the cases referred to them). As noted above in note 52, it is impossible to reach a firm conclusion about the relative frequency of instances of each type of mercy because nullification numbers are not possible to obtain. Nevertheless, it is clear that prosecutors have more opportunities to be merciful than do jurors because prosecutors handle all criminal cases, whereas ninety-five percent of cases resulting in criminal convictions never even reach a jury.
168. See Bureau of Justice Statistics, U.S. Dep't of Justice, Criminal Case Processing Statistics (Aug. 6, 2006), http://www.ojp.usdoj.gov/bjs/cases. htm.
169. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
170. United States v. Armstrong, 517 U.S. 456, 469 (1996).
171. See, e.g., Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 IOWA L. REV. 393 (2001);
172. James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521 (1981).
173. For an exception, see Stephanos Bibas, Essay, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. REV. 911, 921-23 (2006) (describing how prosecutors' "assessment of just punishment tends to soften over time" and criticizing the disjunction this creates with the views of the public). The lead prosecutors in a jurisdiction, such as the attorney general or district attorney, have sometimes expressed concern with the discretion of line assistants to be lenient.
174. See, e.g., Memorandum from John Ashcroft, Attorney General, to All Federal Prosecutors 2 (Sept. 22, 2003), available at http://news.findlaw.com/hdocs/docs/doj/ashcroft92203chrgmem.pdf (noting federal prosecutors' general duty "to charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case, except as authorized by an Assistant Attorney General"). But this concern is a classic principal-agent problem that is internal to the prosecutor's office. The office heads have made no claims that they themselves should be dispossessed of the discretion to be lenient. Their claims relate only to how they want their subordinates to proceed in the absence of their approval. See id. (noting that an Assistant Attorney General, United States Attorney, or designated supervisory attorney is authorized to make exceptions to the general policy, including for "other exceptional circumstances" that are not detailed in the memo).
175. In addition to Bordenkircher v. Hayes, 434 U.S. 357,
176. see Wade v. United States, 504 U.S. 181 (1992) (holding that a prosecutor's discretion over substantial-assistance motions is reviewable only for unconstitutional motives);
177. Wayte v. United States, 470 U.S. 598, 607 (1985) (recognizing prosecutors' broad power to decide what charges to bring);
178. United States v. Batchelder, 442 U.S. 114, 124 (1979) (noting that whether to prosecute and what charges to bring "are decisions that generally rest in the prosecutor's discretion");
179. Santobello v. New York, 404 U.S. 257, 260 (1971) (accepting prosecutors' power to plea bargain);
180. and Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379-83 (2d Cir. 1973) (noting prosecutors' broad discretion).
181. William J. Stuntz, Self-Defeating Crimes, 86 VA. L. REV. 1871, 1892 (2000);
182. see also Pamela Baschab, Jury Nullification: The Anti-Atticus, 65 ALA. LAW. 110, 113 (2004) (criticizing jury nullification but approving of the fact that prosecutors have similar discretion not to prosecute);
183. Jamie S. Gorelick & Harry Litman, Keynote Address, Prosecutorial Discretion and the Federalization Debate, 46 HASTINGS L. J. 967, 973 (1995) (praising federal prosecutorial discretion because it is "the most important and effective brake on the federalization of crime");
184. Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117, 2139 (1998) ("Discretion in enforcement permits rapid adjustment of priorities as the extent and perceived obnoxiousness of... offenses wax and wane."),
185. Steven W. Perry, Bureau of Justice Statistics, U.S. Dep't of Justice, Prosecutors in State Courts, BUREAU JUST. STAT. BULL., July 2006, at 1, 2, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/psco5.pdf (noting that all chief prosecutors are elected except those in Alaska, Connecticut, New Jersey, and the District of Columbia).
186. This contrast in transparency might explain in part why the President's unreviewable power to pardon has faced more criticism than federal prosecutors' unreviewable decisions not to bring charges even though federal prosecutors are subordinate executive officers and are not themselves elected. See Samuel T. Morison, The Politics of Grace: On the Moral Justification of Executive Clemency, 9 BUFF. CRIM. L. REV. 1, 114 (2005) ("It seems analytic that a subordinate executive officer cannot exercise a greater measure of discretionary authority than the principal from whom that authority is derived."). Another explanation, though, is that presidential pardons usually come after conviction, so the President's decision often amounts to second-guessing of a jury's verdict or a prosecutor's decision to seek a plea; a decision not to charge, in contrast, does not contradict the judgment of another actor in the system.
187. See Heckler v. Chaney, 470 U.S. 821, 831 (1985) (noting that an agency's "decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise").
188. Moreover, if law enforcement is seen as a joint enterprise of prosecutors and police officers, as Professor Daniel Richman has effectively pointed out, Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 COLUM. L. REV. 749 (2003), the professionalization of police forces in the second half of the twentieth century lends additional support to a theory that sees deference to prosecutors and law enforcement as based on a notion of administrative expertise.
189. See David Alan Sklansky, Police and Democracy, 103 MICH. L. REV. 1699, 1742-45 (2005) (describing the "second wave" of police professionalism).
190. See Heckler, 470 U.S. at 832.
191. While Heckler has been criticized for giving agencies broad leeway in deciding whether to prosecute, see sources cited supra note 25, criminal prosecutors' discretion has not faced the same scrutiny.
192. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001);
193. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928);
194. Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737, 746 (D.D.C. 1971).
195. See Am. Trucking, 531 U.S. at 474 ("In the history of the Court we have found the requisite 'intelligible principle' lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring 'fair competition.'"
196. (citing Pan. Ref. Co. v. Ryan, 293 U.S. 388 (1935);
197. and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935))).
198. See Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 YALE J. ON REG. 1, 30-31 & fig.A (1998)
199. (reviewing a sample of federal appellate cases involving the application of the two-step framework set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and finding that 38% were resolved at Chevron "step one," with the agency's position rejected in 58% of those cases).
200. Compare John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 107-27 (2001) (advocating for the "faithful agent" model of judicial power and arguing that the modern rejection of "the equity of the statute" will not lead to rigidity, literalism, or absurdity in textualist interpretation),
201. with William N. Eskridge, Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 COLUM. L. REV. 990, 1087-1106 (2001) (describing the historical origins of judicial power as supporting dynamic interpretation techniques).
202. In Chevron, the Court noted that courts should "employ[] traditional tools of statutory construction," 467 U.S. at 843 n.9, which include legislative history, a statute's purpose, and consistency with other statutes.
203. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (analyzing the overall regulatory scheme and later legislation to determine whether a statute granted the FDA the authority to regulate tobacco);
204. Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687 (1995) (looking at a combination of text, legislative history, and significance of a subsequent amendment to the statute in determining the meaning of "taking" an animal);
205. see also William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 321-22 (1990) (arguing that judges do, and should, use varying methods to interpret statutes).
206. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 825-26 (2006) (finding that "on both the Supreme Court and the courts of appeals, the application of the Chevron framework is greatly affected by the judges' own convictions. Whatever Chevron may say, the data reveal a strong relationship between the justices' ideological predispositions and the probability that they will validate agency determinations.").
207. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
208. (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
209. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971).
210. The Court takes an expansive view of its role in substantive constitutional interpretation, see, e.g., Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 353 (1981) (noting that "many judges, and perhaps most academic commentators view the constitution as authorizing courts to nullify the results of the political process on the basis of general principles of political morality not derived from the constitutional text or the structure it creates");
211. Michael Stokes Paulsen, The Constitution of Necessity, 79 NOTRE DAME L. REV. 1257, 1257 (2004) ("The Constitution itself embraces an overriding principle of constitutional and national self-preservation that operates as a meta-rule of construction for the document's specific provisions and that may even, in cases of extraordinary necessity, trump specific constitutional requirements.");
212. Richard A. Posner, Pragmatic Adjudication, 18 CARDOZO L. REV. 1, 5 (1996) (defending pragmatic judging, which means viewing statutes and constitutions "merely as sources of information and as limited constraints on [a judge's] freedom of decision"),
213. and of the scope of questions that are appropriate for courts, see, e.g., Barkow, supra note 21.
214. 506 U.S. 224 (1993).
215. Id. at 253-54 (Souter, J., concurring in the judgment).
216. Id. at 254, Justice O'Connor in Woodard used the same coin-toss scenario when she noted that due process concerns should limit executive power over pardons.
217. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289 (1998) (O'Connor, J., concurring in part and concurring in the judgment).
218. See RONALD DWORKIN, LAW'S EMPIRE 313-54 (1986).
219. See William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1496 (1987) (outlining theory);
220. see also William N. Eskridge, Jr. & John Ferejohn, Structuring Lawmaking to Reduce Cognitive Bias: A Critical View, 87 CORNELL L. REV. 616, 642-43 (2002) (arguing that "[statutory interpreters should construe laws to reduce the risk of unanticipated error costs of a large matmitude").
221. See, e.g., T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 58 (1988) (endorsing a "nautical" model of interpretation that asks judges to interpret statutes as if they had been recently enacted on the theory that "fundamental understandings, such as right and wrong, entitlement, responsibility, fairness, and duty" are norms that should be furthered by interpretation);
222. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 462-503 (1989) (advocating a broad role for judges when they interpret regulatory statutes). Professor Henry Monaghan has observed a similar tendency among legal scholars to view judges as empowered to interpret the Constitution to promote justice and fairness.
223. See Monaghan, supra note 113, at 358-60.
224. See, e.g., William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 587 (2001) (advocating greater court oversight as the "probably best" solution to criminal law's "pathological politics"). Capital punishment provides a vivid illustration of this dynamic in the criminal sphere. Scholars such as Professors Carol Steiker and Jordan Steiker have observed that one reason that executive clemency rates in capital cases have declined so sharply in recent decades is that there is now a perception among governors and other actors in the criminal justice system that the Supreme Court is providing the necessary regulation of these cases.
225. See Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355, 435 (1995) (noting how the Court's regulation of capital punishment serves a legitimating function and may lead, among other things, to governors "feel[ing] that any sentence that survives both state and federal review is not an appropriate vehicle for exercising the power of clemency");
226. see also Franklin E. Zimring, Inheriting the Wind: The Supreme Court and Capital Punishment in the 1990s, 20 FLA. ST. U. L. REV. 7, 17 (1992) ("Executive clemency all but disappeared in the United States in the era of hands-on federal court involvement.").
227. I have written about this in greater detail elsewhere. See Barkow, Administering Crime, supra note 28, at 723-35 (comparing political pressures faced by commissions regulating sentencing to those faced by agencies regulating noncriminal fields);
228. Rachel E. Barkow, Federalism and the Politics of Sentencing, 105 COLUM. L. REV. 1276, 1278-83 (2005) (describing the politics of criminal sentencing);
229. Barkow, Separation of Powers and the Criminal Law, supra note 13, at 1028-31 (explaining the differences between the political dynamics of criminal law and administrative law). In addition to this political economy explanation for why criminal punishment is disproportionately harsh, Professor Carol Steiker has explained that the leading theories of punishment -retributivism and social welfare theory -also push toward "an ever-upward tending ratchet of punishment."
230. Steiker, supra note 5, at 30-31.
231. Love, supra note 69, at 30.
232. For much of the nation's history, judges had discretion to set punishments based on a defendant's individual circumstances. That authority gave judges discretion to calibrate sentences based on the facts of an individual's case instead of generalized and often uninformed notions about punishment that tend to infect the legislative process. Barkow, Federalism and the Politics of Sentencing, supra note 121, at 1280-83. This judicial corrective was far from perfect, however. For even when judges possessed discretion to check broad laws through their sentencing authority, they often failed to do so, either because the judges were also elected and faced political pressure or because they tended to side with the government.
233. See Barkow, supra note 49, at 57-58, 72 (explaining why judges might be partial to the government);
234. Gregory A. Huber & Sanford C Gordon, Accountability and Coercion: Is Justice Blind When It Runs for Office?, 48 AM. J. POL. SCI. 247, 248 (2004) (finding that judges give harsher sentences closer to their reelection).
235. See Barkow, supra note 49, at 79 (noting that jury acquittals led to reforms in sentencing laws);
236. George Lardner, Jr. & Margaret Colgate Love, Mandatory Sentences and Presidential Mercy: The Role of Judges in Pardon Cases, 1790-1850, 16 FED. SENT'G REP. 212, 220 n.20 (2004) (noting that "[p]ardoning was a regular practice for the early Presidents" and providing statistical support; for example, between 1801 and 1828, 596 defendants were found guilty at the federal level and, of those, 148 were ultimately pardoned)
237. (citing DWIGHT F. HENDERSON, CONGRESS, COURTS AND CRIMINALS: THE DEVELOPMENT OF FEDERAL CRIMINAL LAW, 1801-1829, at 46-47 & 53 n.94 (1985)).
238. Lardner & Love, supra note 124, at 212 (noting the "importance of having a safety valve in any system of mandatory punishments, one that is both readily accessible and politically accountable"). As James Iredell noted in the debates over the Constitution, "[i]t is impossible for any general law to foresee and provide for all possible cases that may arise; and therefore an inflexible adherence to it, in every instance, might frequently be the cause of very great injustice." James Iredell, Address in the North Carolina Ratifying Convention (July 28, 1788),
239. reprinted in 4 THE FOUNDERS' CONSTITUTION 17, 17 (Philip B. Kurland & Ralph Lemer eds., 1987).
240. THE FEDERALIST NO. 74, at 446 (Alexander Hamilton) (Clinton Rossiter ed., 1961);
241. see also CESARE BECCARIA, ON CRIMES AND PUNISHMENTS AND OTHER WRITINGS, ch. 46, at 111 (Richard Bellamy ed., Richard Davies trans., Cambridge Univ. Press 1995) (1764) ("Clemency ... should be redundant in a perfect administration where punishments are mild and the methods of judgement are regular and expeditious. This truth will seem hard to one who lives amid the chaos of a criminal system in which amnesties and pardons are called for in proportion to the absurdity of the laws and the awful severity of the sentences.");
242. U.S. DEP'T OF JUSTICE, THE ATTORNEY GENERAL'S SURVEY OF RELEASE PROCEDURES 298 (1939) [hereinafter ATTORNEY GENERAL'S SURVEY] (noting that clemency has "historically always been used ... to take care of cases where the legal rules have produced a harsh, unjust, or popularly unacceptable result" and that "[s]uch cases will continue to arise under any legal system").
243. See JUSTICE KENNEDY COMM'N, supra note 64, at 8 (arguing that "pardon[s] must remain an essential component of any just system of punishment" in part because they represent the only viable mechanism for removing collateral consequences of a conviction and addressing changed circumstances that might arise after sentencing).
244. United States v. Dougherty, 473 F.2d 1113, 1142 (Bazelon, C.J., concurring in part and dissenting in part).
245. The O.J. Simpson verdict, for instance, was widely viewed as an example of jury nullification, see, e.g., John Leo, The Color of the Law, U.S. NEWS & WORLD REP., Oct. 16, 1995, at 24, 24;
246. Pinkerton, supra note 51, and it led to a close examination of racism in the Los Angeles police department,
247. see Patrick McGreevy, Post-Fuhrman Reforms in Place, Parks Declares, DAILY NEWS (L.A.), Aug. 26, 1998, LEXIS, News Library, LAD File;
248. Jim Newton, Police Scandal To Test City Leaders, L.A. TIMES, Sep. 20, 1999, at A1.
249. For example, jury nullification in prohibition cases, KALVEN & ZEISEL, supra note 52, at 76, 291-92 & n.10 (reporting that acquittal rates in federal cases for liquor violations were as high as 60% in some parts of the country), can be linked to the repeal of those laws.
250. See Leipold, supra note 29, at 298 (noting that "the frequent exercise of the nullification power" was part of the reason that the Supreme Court concluded that mandatory capital punishment schemes violated the Eighth Amendment).
251. ATTORNEY GENERAL'S SURVEY, supra note 126, at 295-96 (noting that "the almost wholly unrestricted scope of the [pardon] power ... has been the tool by which many of the most important reforms of the substantive criminal law have been introduced," including the introduction of self-defense and insanity defenses, and also attributing the advent of parole, furloughs, and good-time credits to pardon practices).
252. Alexia Elejalde-Ruiz, Illinois Governor Empties Death Row, BOSTON GLOBE, Jan. 12, 2003, at A1;
253. Maurice Possley & Steve Mills, Clemency for All: Ryan Commutes 164 Death Sentences to Life in Prison Without Parole, CHI. TRIB., Jan. 12, 2003, at 1.
254. See Markel, supra note 5, at 1424 nn.11-12 (collecting sources praising and criticizing the Ryan commutation).
255. Editorial, Clemency Action Draws Scrutiny, ADVOCATE (Baton Rouge, La.), Jan. 19, 2003, at 8B ("Gov. George Ryan's mass clemency has not only cleared death row in Illinois, but ignited anew the debate over the death penalty in America.");
256. see also John Charles Boger, Foreword: Acts of Capital Clemency: The Words and Deeds of Governor George Ryan, 82 N.C. L. REV. 1279 (2004) (introducing a colloquium on capital punishment and clemency, inspired by Governor Ryan's act);
257. Austin Sarat & Nasser Hussain, On Lawful Lawlessness: George Ryan, Executive Clemency, and the Rhetoric of Sparing Life, 56 STAN. L. REV. 1307, 1308-09, 1332-44 (2004) (examining the debate surrounding Governor Ryan's clemency). As Michael Heise has noted, "clemency fulfills an especially crucial function in the death penalty context" because of the stakes involved.
258. Michael Heise, Mercy by the Numbers: An Empirical Analysis of Clemency and Its Structure, 89 VA. L. REV. 239, 241 (2003). Clemency is particularly important for claims of actual innocence because the Court has made those claims difficult to bring in a habeas action.
259. See Herrera v. Collins, 506 U.S. 390, 400 (1993) (disallowing habeas relief for actual innocence claims unless there is an independent constitutional violation). And there is evidence that many death row inmates, along with inmates serving time for non-capital offenses, have meritorious innocence claims. Two hundred twelve U.S. convicts have been exonerated through DNA evidence. The Innocence Project, Know the Cases, http://www. innocenceproject.org/know/ (last visited Feb. 9, 2008).
260. See supra pp. 1351-53.
261. In the federal system, where the prosecutors work for the President, the President shares prosecutors' law enforcement interests to some extent. Even there, however, the President is more likely to take into account competing values because, unlike prosecutors, he is responsible for more than just law enforcement. At the state level, the governor does not exercise oversight over the district attorneys, so their interests are even more disparate.
262. See Kenneth Bresler, Essay, "I Never Lost a Trial": When Prosecutors Keep Score of Criminal Convictions, 9 GEO. J. LEGAL ETHICS 537, 538-46 (1996) (examining and decrying "prosecutorial score-keeping");
263. Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B.U. L. REV. 125, 134-35 (2004) ("Prosecutors with the highest conviction rates (and, thus, reputations as the best performers) stand the greatest chance for advancement internally.").
264. United States v. Dougherty, 473 F.2d 1113, 1136 (D.C. Cir. 1972)
265. (quoting Follow-Up/The Jury, CENTER MAG., July 1970, at 59, 61 (providing the remarks of Justice Abe Fortas)) (internal quotation marks omitted);
266. see also Alan W. Scheflin, Jury Nullification: The Right To Say No, 45 S. CAL. L. REV. 168, 181 (1972) ("Jury discretion in this context may be a useful check on prosecutorial indiscretion.").
267. Professor Darryl Brown likens the jury's nullification power to dynamic theories of statutory interpretation, Brown, supra note 31, at 1169.
268. WHITMAN, supra note 4, at 185 (noting that the pardon power was used to free persons charged with "kukluxing");
269. Barkow, supra note 49, at 75-76 & nn.191-92 (discussing racial discrimination by prosecutors and jurors);
270. Kobil, supra note 79, at 46 (giving examples of racial discrimination in the issuance of pardons).
271. Individualization does not necessarily mean that there will be more racial discrimination. Many of the crimes for which individuals could be pardoned, such as violations of drug laws, lead to discriminatory effects, so individualization could curtail discrimination. Moreover, although there is a lack of rigorous empirical evidence on jury nullification, there is some anecdotal support for the notion that jury nullification occurs more frequently in communities of color where a disproportionately high number of minorities face criminal charges. See Paul Butler, Essay, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 679-80 (1995) (noting that some black jurors may vote to acquit black defendants on the basis of race and arguing that "racial considerations by African-American jurors are legally and morally right");
272. Nancy S. Marder, The Myth of the Nullifying Jury, 93 NW. U. L. REV. 877, 899-901 (1999) (discussing so-called "Bronx juries"). These jurors could therefore be combating racially disparate application of the criminal law. In addition, there is evidence that the exercise of the pardon power is not being used to discriminate on the basis of race, even in capital proceedings.
273. See Heise, supra note 135, at 307-08.
274. Professor Daniel Kobil argues that "the lack of consistent, principled standards governing the exercise of executive clemency has led not to the expansive use of the pardoning power, but to its atrophy." Kobil, supra note 73, at 602. He therefore proposes standards and procedures with the hope of increasing, not decreasing, the use of the clemency power. But it is hard to imagine that generous standards for pardons or commutation would be approved in the current political climate, so any standards implemented by a reviewing body would more likely end up restricting the pardon power.
275. See ATTORNEY GENERAL'S SURVEY, supra note 126, at 298-99 (noting that "[a] criminal code can only define antisocial conduct in general terms" and "can never take into account all the special circumstances which may be involved in a given case," thereby continuing to justify the necessity of pardon as a safety valve);
276. Linda Ross Meyer, The Merciful State, in FORGIVENESS, MERCY, AND CLEMENCY, supra note 5, at 64, 86-87 (pointing out the shortcomings of rules and arguing that "[t]he only way to achieve the pardon as equity is to keep it ruleless and thereby lawless").
277. The experience with lawyers' peremptory challenges of prospective jurors is a prime illustration. See Samuel R. Sommers & Michael I. Norton, Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of Peremptory Use and the Batson Challenge Procedure, 31 LAW & HUM. BEHAV. 261, 272 (2007) (presenting an empirical study that concludes that peremptory challenges are often based on race but "decision-makers are remarkably facile at recruiting race-neutral characteristics to justify jury selection judgments");
278. Amanda S. Hitchcock, Recent Development, "Deference Does Not By Definition Preclude Relief": The Impact of Miller-El v. Dretke on Batson Review in North Carolina Capital Appeals, 84 N.C. L. REV. 1328, 1334 (2006) ("[I]f a prosecutor need only some race-neutral reason to justify her challenge, it is not difficult to find one, and even less difficult for a judge to accept it as valid.").
279. There is some evidence that pardons are more numerous in jurisdictions with independent pardon boards because they are insulated from political pressure. See JUSTICE KENNEDY COMM'N, supra note 64, at 7 (noting that "pardons tend to be granted more regularly and generously" in states with an independent board than in states "where the governor exercises the power subject to no procedural constraints");
280. Dorne & Gewerth, supra note 81, at 444 (observing that pardon boards provide a "'political cushion' for the governor"). In this scenario, the executive is likely to leave the politically unpopular decisions with the agency. Professor Michael Heise has found that states that vest clemency decisions exclusively in administrative boards were more likely to grant clemency in death penalty cases than states that give clemency authority only to the governor.
281. Heise, supra note 73, at 244. This finding might suggest limiting executive pardon power altogether and vesting all authority with a board. But it is possible that, as these boards continue to grant clemency at a greater rate, they will attract legislative attention or greater public scrutiny, and their discretion will be curtailed or their process otherwise skewed toward denying petitions for clemency. For example, the U.S. Department of Justice pardon process has moved toward a model that grants more authority to prosecutors.
282. See U.S. Dep't of Justice, United States Attorney's Manual Standards for Consideration of Clemency Petitions § 1-2.111,
283. See Barkow, supra note 28, at 758-71.