Terror and Tenderness in Criminal Law

Authors

M. Eve Hanan, UNLV William S. Boyd School of Law

Abstract

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.

Keywords

Criminal Law and Procedure, Law Enforcement, Sentencing and Punishment, Penology, Imprisonment

Disciplines

Criminal Law | Criminal Procedure | Law | Law Enforcement and Corrections

Recommended Citation

M. E. Hanan, Terror and Tenderness in Criminal Law, 45 Cardozo L. Rev. 581 (2023).
Available at: https://larc.cardozo.yu.edu/clr/vol45/iss2/5