Document Type

Article

Publication Date

2023

Abstract

The criminal legal system is at a crossroads. Calls for abolition are met with calls for modest adjustments or maintenance of the status quo. What frequently emerges from these polarities is a promise that police, prosecutors, judges, and other government actors will use their vast discretion to reduce the harmful excesses of criminal legal practices. Initiatives like “compassionate release,” “second look sentencing,” and the progressive prosecutor’s pledge to “charge with restraint” are examples of this promise to exercise discretion with care. In word choice and design, these discretionary reforms suggest tempering harsh criminal legal practices with leniency and individualized consideration—a promise of tenderness.

This Article argues that the current wave of reforms deploys discretionary relief in a manner that provokes unwarranted optimism while masking the state’s power to invoke terror through policing, prosecution, and punishment. An emotional sleight of hand, discretionary relief--sometimes cast as leniency--entrenches the excessiveness of criminal legal systems in at least three ways. First, discretionary leniency is merely a continuation of a pattern of strategic mercy documented in English law as early as the thirteenth century when pardons were issued to those sentenced to death in order to assuage public outcry over excessive punitiveness. Second, reforms that rely on discretionary leniency reinforce well-worn beliefs about merit—who merits punishment and who merits mercy. This liberal conceptualization of meritocracy shifts responsibility for the harshness of criminal legal practices onto the shoulders of defendants, a phenomenon that masks racial and other disparities in criminal systems. Third, discretionary-based reforms do not change substantive law or procedure. Instead, they rely on the leadership qualities of the discretionary decision-maker. This further entrenches the neoliberal tenet that reforming unjust or inequitable institutions can be accomplished by simply finding the right person for the job. This reliance on good people making good decisions truncates discussion of more sweeping changes that would place structural and legal limits on the state’s power to police, prosecute, and punish.

Publication Citation

45 Cardozo L. Rev. 581 (2023).

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