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This comment responds to an essay by Rachel Barkow, which insightfully links the decline of mercy in American criminal justice to the rise of a rule-of-law ideal inspired by administrative law. This comment notes the dangers of the administrative, rule-focused, judiciocentric approach to criminal justice. Instead, it suggests a more political approach, with more judicial deference to political actors and less judicial policing of equal treatment. The essay by Rachel Barkow to which this comment responds, as well as other authors' comments on this essay and the author's reply to those comments, can be found at


criminal justice, criminal procedure, mercy, pardon, forgiveness, clemency, parole, prosecutors, rule of law, discretion, prosecutors

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Criminal Law Conversations

Publication Citation

In Paul H. Robinson et al. (eds.), Criminal Law Conversations 677-678 (2009)