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Criminal Law Conversations$
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Paul H. Robinson, Stephen Garvey, and Kimberly Kessler Ferzan

Print publication date: 2011

Print ISBN-13: 9780199861279

Published to Oxford Scholarship Online: April 2015

DOI: 10.1093/acprof:osobl/9780199861279.001.0001

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Mercy’s Decline and Administrative Law’s Ascendance

Mercy’s Decline and Administrative Law’s Ascendance

(p.663) 30. Mercy’s Decline and Administrative Law’s Ascendance
Criminal Law Conversations

Rachel E. Barkow

Oxford University Press

This chapter presents an authoritative discussion of the decline of mercy and the rise of the administrative state and the concepts of law that have emerged alongside it. It begins by charting the development of administrative law and the importance of judicial review before turning to the decline of jury nullification and executive clemency as well as the relative acceptance of prosecutorial discretion. It then considers the centrality of judges in administrative law and the place of mercy in criminal law. It concludes with a normative critique, based on key differences between criminal law and administrative law, that challenges the application of an administrative law framework to the exercise of mercy in criminal cases. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as the subjective and objective discretion of prosecutors, prosecutorial power, equality, political versus administrative justice, and criminal law representative populism.

Keywords:   mercy, administrative state, administrative law, judicial review, jury nullification, executive clemency, prosecutorial discretion, judges, criminal law, representative populism

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