The tailwinds might be behind criminal justice reform, but American mercy power remains locked in a sputtering clemency model. Centralized leadership should be braver or the centralized institutions should be streamlined, the arguments go—but what if the more basic mercy problem is centralization itself? In this essay, I explore that question. In so doing, I defend the normative premise that post-conviction mercy is justified, and I address the questions of institutional design and political economy that follow. I ultimately encourage jurisdictions to layer decentralized mercy powers on top of their clemency mechanisms, and for the newer authority to be vested in local prosecutors. I present less a single proposal than a collection of principles for mercy decentralization. Governors and presidents simply cannot deliver the punishment remissions appropriate for an American prison population bloated by a half-century love affair with over-criminalization, mandatory minimums, and recidivism enhancements.
Bryant Smith Chair in Law and Co-Director, Capital Punishment Center, University of Texas School of Law. For their input on various parts of this project, I am grateful to Jeff Bellin, Kiel Brennan-Marquez, Jake Bronsther, Bennett Capers, Vincent Chiao, Danielle Citron, Erin Collins, Antje du Bois-Pedain, Kimberly Ferzan, Brandon Garrett, Russell Gold, David Gray, Ben Grunwald, Carissa Hessick, Joe Kennedy, Lisa Kern Griffin, Corinna Lain, Kaye Levine, Richard Myers, Michael Pappas, Michael Pinard, Megan Stevenson, Seth Stoughton, Will Thomas, and Josh Vorhaus.
Lee Kovarsky; Prosecutor Mercy. New Criminal Law Review 1 July 2021; 24 (3): 326–366. doi: https://doi.org/10.1525/nclr.2021.24.3.326
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