Introduction
Sentencing reductions, executive pardons, prison release programs, and progressive prosecutors have something in common. In word choice and design, they suggest tempering the violence of criminal law in a limited number of cases. The prisoner may be released early based on a record of good behavior. The President may grant clemency to those sentenced in an earlier era to decades in prison for a drug crime. The prosecutor may recommend drug court rather than a jail sentence to a defendant addicted to illegal substances. In the era of “smart on crime,” reform often comes through expanding these mechanisms of relief that rely on individualized discretionary decisions to reduce the number of people prosecuted, convicted, and punished for crimes. Although the tagline “smart on crime” generally refers to interventions that meet measurable objectives at acceptable costs, these reforms often are accompanied by an endorsement of the power of discretionary actors to act in a caring manner toward the targets of prosecution and punishment. Empowered to unleash the violence of criminal systems upon the targets of criminal prosecution and punishment, prosecutors and judges can often exercise their discretion along the lines of conceptually fuzzy gestures of leniency, mercy, or compassion.
Many of these reforms have been critiqued for their limited and imperfect application. Few prisoners are released. Prosecutors generally divert from prosecution only the most trivial of cases. The few defendants diverted to programs like drug court may fail in treatment and face imprisonment. Mass conviction and incarceration of targeted populations remains intact despite these reforms. Many of the reforms expand rather than shrink the criminal legal net.
Moreover, reforms designed to systematize discretionary relief are criticized for entrenching algorithms of racialized punitiveness and using terms like “evidence-based practice” to gloss over first-order questions of morality and public policy. Even aside from algorithmic decisions, the problem of racialized application of discretionary leniency has received well-deserved criticism. Discretionary decisions usually involve subjective assessments of culpability and dangerousness, and thus are prone to exacerbate racial disparities in policing, prosecution, and punishment, infected with centuries of propaganda about white victimhood and Black criminality.
The critique of leniency-based reforms is incomplete, however, without an analysis of their emotional register. Their language reveals an attachment to—and thus a reliance on—individual prosecutors, judges, and prison authorities to mitigate the harshness of criminal legal systems through empathetic and individualized decisions. As I have written elsewhere, the use of empathy and moral imagination is critically important in the exercise of discretion at sentencing. But the danger of the sentimentalism embodied in the rhetoric and structure of reforms that champion discretionary decision-making merits caution. Focusing on these sentimental mechanisms of control clarifies the theoretical gap in efforts to dismantle carceral practices. In this Article, I argue that, although reforms relying on discretionary leniency provide needed relief for some, their rhetoric and structure entrenches the excessiveness of criminal legal systems in at least three ways.
First, these reforms function in a premodern manner to soothe alarm about the sovereign’s monopoly on violence—the state’s power to arrest, convict, and punish. Examples of discretionary leniency reassure that the sovereign can also bestow tenderness and mercy. In this sense, these reforms are not innovative. Rather, they rely on the centuries-old polarity between the terrifying possibility of ruinous punishment and the hope that the sovereign will bestow mercy. In this polarity, acts of mercy legitimate the authority of the sovereign in the eyes of the public and, often, in the eyes of the defendant. To quote Kathryn Temple’s discussion of a criminal process described by Lord Blackstone, “both terror and tenderness [are] juridical technologies meant to manage resistance.” Like Temple, I use the term “tenderness” critically to mean not genuine affection but the strategic deployment of mercy.
Second, these reforms reassert the liberal keystone of meritocracy in punishment. Anecdotes of discretionary leniency tell the story of defendants and prisoners who have made choices that demonstrate their merit for special relief. In so doing, the anecdotes entrench a foundational principle of criminal law—that both punishment and its remittance are doled out according to what the defendant deserves. Rooted in centuries of the folk psychology of individual autonomy, criminal law punishes actions deemed the product of voluntary choice, with a hierarchy of severity tied to claims about individual culpability. On the flip side, leniency based on rehabilitative success, such as, for example, the defendant’s completion of a drug court treatment protocol, reassures the public that the judge is carefully distinguishing among defendants based on their individual merit. But this means that not only were the acts of leniency deserved, but also punitive acts against defendants who refused or failed the treatment protocol. Our folk belief in individual autonomous control over our lives is, I argue, a foundational emotional attachment of criminal law, and it is an attachment that is strengthened by doling out mercy to the few who are deemed deserving.
Third, these discretionary-based reforms shore up rather than call into question the vast power of criminal-legal actors, whether they are prosecutors, judges, parole commissioners, governors, or U.S. Presidents. The reforms squarely place in their hands the authority to reduce the harshness of criminal systems, trusting them as the arbiters of relief. This further entrenches the neoliberal tenet that reforming unjust or inequitable institutions can be accomplished by infusing the existing structures with professionals who exercise empathy and moral imagination. This reliance on good people making good decisions truncates discussion of more sweeping changes. In other words, “confidence in the critical intelligence of affect, emotion, and good intention” of leaders substitutes for critical examination of laws and institutions.
The emotional register of these three aspects of discretionary-based reforms—premodern mercy, liberal meritocracy, and neoliberal sensibility of leadership—work together as a love potion for the carceral state, a cocktail of sentimentalism about the possibility of careful sorting and calibrated punishment. In other words, these reforms seduce. Beneath the seduction, these reforms conceal and legitimate the power of criminal legal reach. The promise of individual acts of discretionary leniency engenders a sentimental mood that permeates the rhetoric around these reforms. The reforms relax the public into a sense of optimism toward the gradual ending of mass incarceration while the mechanisms of terror whirl on in the background.
My use of the word terror derives from Achille Mbembe, who conceptualizes state terror as the state’s capacity to destroy or ruin a person’s life, whether literally or figuratively. The idea of ruination in criminal law was recently described by Judith Resnik, who argues that the Eighth Amendment contains an antiruination principle that has been recognized by the Supreme Court in the context of the Excessive Fines Clause, which should be developed in the Eighth Amendment’s prohibitions against excessive bail and cruel and unusual punishment.
Yet, when one thinks about ruination, it quickly becomes a concept that characterizes the risk at each step of the process of being policed, prosecuted, and punished. Ruination includes the danger of the police interaction, the devastating effects of arrest and pretrial detention, insuperable fines, incarceration, the collateral consequences of conviction, and sometimes the sentence of death. Whatever the constitutional limits on ruination, criminal legal systems have the power to devastate—to ruin—their targets.
While the coercive power of criminal law has been explored at length, less attention has been given to its complementary emotional register: the power of displays of mercy or—to use Temple’s word—tenderness. This Article fills that gap, revealing the way in which the emotional register of these reforms lulls us into a fuzzy sentimental state that truncates the possibility of more lasting, structural changes to criminal legal practices. By masking the violence of criminal law, the emotional register of these leniency-based reforms cuts short the opportunity to have a full, public debate about whether we want criminal law to have such awesome power to provoke terror and to ruin.
There is benefit in shaking off the haze of hope produced by stories of reformed prisoners returning home and drug court graduation ceremonies. When the love potion wears off, one can focus on imagining reforms that actually limit the power of the state to prosecute and punish by decriminalizing certain offenses, lowering maximum punishments, and providing mental health and addiction treatment outside of criminal courts. Abolitionists, for example, analytically distinguish between reforms that increase and decrease the size of criminal systems. But this type of analysis is difficult when one is sated by anecdotes of discretionary leniency.
The Article contains three parts. Part I draws a parallel between the emotional register of current reforms that rely on discretionary leniency and examples of the premodern use of mercy to legitimate the harshness of English criminal law as reported by legal historians. These historians suggest that various state actors—from royalty to municipal officials—remitted punishment in calculated efforts to maintain legitimacy. With these historical examples in mind, this Part analyzes the public face of former President Obama’s clemency initiative, as well as the language of “compassionate release” and “second-look” sentencing. The thesis of this Part is that leniency continues to function as a technique to enhance positive feelings toward the state and thus shore up its legitimacy. Leniency serves this legitimating function even when the real-world impact of the initiative is negligible.
Part II demonstrates how the meritocracy-of-punishment trope fits within reforms that rely on discretionary leniency. Using a media account of the parole process, where early release is granted only to those who can demonstrate a record of perfect conduct in prison, this Part shows how discretionary leniency is tied to an assessment of the defendant’s merit. Leniency, in other words, must be earned. Reforms that rely on discretionary leniency thus entrench an inflated sense of individual autonomy, which justifies the most destructive structural features of criminal systems. The idea that the defendant’s choices are the source of the state action has been used to justify all manner of policing, courtroom procedure, and punishment. By emphasizing merit, discretionary leniency maintains—and perhaps intensifies—moral and emotional attachment to the status quo of criminal systems.
Part III addresses how neoliberal leadership philosophy has elevated the discretionary criminal legal professional to new heights. An important aspect of neoliberalism is its commitment to the idea that most problems can be solved not through institutional change, but through visionary leaders/entrepreneurs who disrupt rather than restructure institutions. Using the example of the “progressive prosecutor,” I demonstrate how reforms that rely on discretionary leniency tend to elevate personality over systemic change. The right person in the role of top prosecutor will, so the argument goes, exercise their discretion to charge with restraint, divert cases to treatment courts, bargain fairly, and recommend fair sentences. This Part analyzes the public discourse supporting “progressive prosecution” to tease out where it tends to elevate personality over structural change.