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90 N.Y.U. L. Rev. 802 (2015)
Clemency and Presidential Administration of Criminal Law

handle is hein.journals/nylr90 and id is 818 raw text is: ARTICLES CLEMENCY AND PRESIDENTIAL ADMINISTRATION OF CRIMINAL LAW RACHEL E. BARKOW* President Obama's use of enforcement discretion to achieve important domestic policy initiatives-including in the field of criminal law-has sparked a vigorous debate about where the President's duty under the Take Care Clause ends and legit- imate enforcement discretion begins. But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front end to achieve policy goals. What about enforcement decisions already made, either by the President's own agents or by actors in previous administrations, with which the President disagrees? The Framers anticipated this issue in the con- text of criminal law and vested the President with broad and explicit back-end con- trol through the constitutional pardon power. This clemency power is a powerful tool for the President to oversee federal criminal administration. But while central- ized authority over enforcement discretion at the front end has grown, the clemency power finds itself falling into desuetude. This Article explores the fall of the clemency power and argues for its resurrection as a critical mechanism for the President to assert control over the executive branch in criminal cases. While clemency has typically been referred to as an exercise of mercy and even analogized to religious forgiveness, it also serves a more structur- ally important role in the American constitutional order that has been largely over- looked: It is a critical mechanism for the President to control the executive department in criminal matters. Those in favor of strong presidential administra- tion or advocates of a unitary executive theory should encourage a more robust employment of the clemency power. But even critics of strong presidential powers or unitary executive theory in other contexts should embrace clemency as a mecha- nism of control in the criminal sphere. Whatever the merits of other unitary execu- tive or presidential administration claims involving military power or oversight over administrative agencies, clemency stands on different footing. It is explicitly and unambiguously grounded in the Constitution's text, and it has an established historical pedigree. It is also a crucial checking mechanism given the landscape of criminal justice today. The current environment of expansive federal criminal laws and aggressive charging by federal prosecutors has produced a criminal justice * Copyright © 2015 by Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law, New York University School of Law. Thanks to Aimee Carlisle, Kadeem Cooper, Heather Gregorio, Steve Marcus, Neal Perlman, and Sam Zeitlin for excellent research assistance. I acknowl- edge with gratitude the financial support of the Filomen D'Agostino and Max E. Greenberg Faculty Research Fund at NYU. Thanks to Brad Clark, Adam Cox, Michael Farbiarz, John Ferejohn, Dan Hulsebosch, Erin Murphy, Mark Osler, Rick Pildes, Daphna Renan, Adam Samaha, Steve Schulhofer, and Kate Stith for comments. I am also grateful for helpful comments and questions from participants at the NYU Faculty Workshop, the Temple Law Faculty Colloquium, the Columbia Law School Colloquium on Courts and the Legal Process, and the Criminal Justice Roundtable at Yale Law School. 802 Imaged with Permission of N.Y.U. Law Review

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