Research Matters: Aziz Huq on "The Difficulties of Democratic Mercy."
Research Matters is a regular feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.
Professor Aziz Z. Huq, Herbert and Majorie Fried Teaching Scholar, wrote “The Difficulties of Democratic Mercy” in response to Harvard Law School Dean Martha Minow’s lecture, “Forgiveness, Justice, and the Law,” at Part II of the 2014-15 Brennan Center Jorde Symposium.
Q. Although Dean Minow took a broader, more international view in her talk, you focused your remarks on the US, and specifically on criminal liability and institutional mercy. Why?
A. If one is looking for occasions in our legal system in which either mercy or forgiveness is warranted, the criminal justice system is an obvious candidate. We have a criminal justice system that incarcerates more than eight times the volume per capita of individuals than the next most punitive western country, which is the United Kingdom. Historically our criminal justice system has not been this large; its growth is a really a product of the last 40 years. Legal scholars think, rightly or wrongly, that constitutional law has something to say about the appropriate use of criminal punishment, so this seemed a natural place to look.
Q. Despite ample constitutional opportunity for merciful discretion, you argue that true mercy is rare. How so?
A. Our constitutional arrangement contains a number of institutions that are not just capable of mercy but seem to be set up to distribute it. The most obvious example is the president’s power to pardon or commute sentences. But he’s not alone. In the judicial system, federal courts have broad powers that are characterized as being equitable in nature, and equity is traditionally understood to be a species of judicial power that is capable of responding with compassion to individual circumstances. The jury system — the grand jury as a check on prosecutors and the petit jury as a slice of the community — are supposed to be institutions that play a tempering role in relation to the presumably harsher attitudes and behavior of prosecutors and police.
But even a superficial review of the trajectories these institutions have taken, in the twentieth century in particular, show that none has fared well. The president is chary in the use of his pardon powers, and the same is true for governors and clemency boards. Juries, both at the grand jury and petit jury stage, have effectively been sidelined, largely as a consequence of the rise of professional prosecutors and the power the prosecutors exercise through plea bargaining. The counterintuitive suggestion I make is that democratic forces and institutions have played a large role in pressing back against the original constitutional seats for mercy.
Q. So is this tension inherent in American democracy?
A. American democracy, for reasons that are not entirely understood, has become extraordinarily punitive. There are a number of empirical studies on this, and the leading study links this to the distinct history of race relations in the United States. There’s a terrific paper that shows that incarceration practices changed not in 1960s and ‘70s, but in the 1920s and ‘30s in northern cities in response to the Great Migration. The emergence of African-American neighborhoods in cities like Chicago, Boston, and New York catalyzed very different kinds of incarceration practices. Before that, when northern liberals gave up on Reconstruction, they told themselves a story about why that was OK, and part of that story was that “African Americans will just mess this up because they are inherently criminal.” It was an association that played out in the urban policing practices in the North, and it continued to deepen and accelerate. By the 1980s, there was a clear rhetorical and felt connection between discussions of criminality and discussions of race. Rather than talking about racial anxieties, politicians talk about anxieties about crime, and everyone understands that what they’re talking about is race. This is a story that is distinctive to the United States; it isn’t one that plays out in western European or Latin America.
Q. Let’s talk big-picture impact: what is the social cost of this evolution?
A. There is a statistic I like to use when I teach Criminal Procedure: If you’re an African-American child and your father is incarcerated during your first couple of years of life, your chance of dying — your mortality risk — increases more than if your mother had taken up smoking during pregnancy. There are a number of terrific studies that have been done looking at collateral public health- and education-related consequences of incarceration, particularly among African Americans. And, by the way, the effects among African Americans are greater than among non-African Americans, even once you account for the difference in volume. The downstream social cost to families, children, and communities in which the incarceration rate is high is staggering — and, as the smoking comparison brings out, it is underappreciated. No matter what position people take on how the government should regulate smoking, everyone recognizes that smoking kills.
Q. How can our legal institutions recapture the original intent for effective mercy? Where do we go from here?
A. I’m not particularly optimistic. I don’t see any realistic prospect for that recapturing. However, I don’t mean to be darkly pessimistic. If there is hope, it is going to be a moment of democratic change that enables the creation of new institutions that permanently embody new forms of mercy. And that does happen. Law professors don’t do it. Law can be the form in which change is installed, but it is never going to be the catalyst for the change. Looking at the protests that followed the Michael Brown and Eric Garner killings, it is not unreasonable to think those are the sort of popular movements that might create political space for institutionalizing forms of change.