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October 6, 2010

"Mercy, Crime Control & Moral Credibility"

The title of this post is the title of this new piece by the always interesting Professor Paul Robinson. Here is the abstract:

If, in the criminal justice context, "mercy" is defined as forgoing punishment that is deserved, then much of what passes for mercy is not.  Giving only minor punishment to a first-time youthful offender, for example, might be seen as an exercise of mercy but in fact may be simply the application of standard blameworthiness principles, under which the offender's lack of maturity may dramatically reduce his blameworthiness for even a serious offense.  Desert is a nuanced and rich concept that takes account of a wide variety of factors.  The more a writer misperceives desert as wooden and objective, the more likely the writer is to mistake judgments of blamelessness for exercises of mercy.

Should a criminal justice system exercise mercy in its real sense (of giving an offender less punishment than he deserves, using a fully nuanced and rich account of desert)?

One can imagine enormous benefits to the exercise of mercy by individuals in their personal dealings with others.  A tendency toward mercy seems an admirable personal trait.  However, it does not follow that mercy would be a desirable practice for a criminal justice system.  Our strong interest in equality of treatment of like offenders and offenses suggests that mercy, if used, would need to be regularized in its application; punishment ought not depend upon the tendency toward mercy, or lack thereof, of the particular decisionmaker in the case at hand. But to institutionalize mercy is to create an expectation and right to it that may be inconsistent with its fundamental character of giving a relief or mitigation from punishment to which an offender is not entitled.

Further, one can imagine serious effects detrimental to the effective operation of the criminal justice system were mercy to be institutionalized.  Classic arguments against it would cite its effect in undermining deterrence and the incapacitation of dangerous offenders.  While some of us might find these arguments unpersuasive, even the desert advocate would have reason to be concerned.  A "mercy program" would seem to similarly undermine both deotological and empirical desert, failing to do justice both as moral philosophers and as the community's shared intuitions of justice would assess it.

On the other hand, what if it were determined –- as recent research suggests -– that community intuitions tend to support some exercise of what might be seen as mercy?  If one sought to distribute criminal liability and punishment in a way to maximized the criminal law's moral credibility, might such evidence of principles of mercy shared by the community suggest that such principles ought to be instantiated in law?

October 6, 2010 at 08:46 AM | Permalink


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I had understood the purpose of litigation to be giving the litigants what they deserve, not something different from that.

The Executive can grant mercy, although I understand that this does not happen as frequently as convicts would like. Still, it remains the mercy "safety valve" of the system.

Posted by: Bill Otis | Oct 6, 2010 10:43:45 AM

To the degree that mercy reduces incapacitation, mercy toward the criminal is cruelty toward the 100 of future victims. I am not even discussing the torment of the past victims and their families. Those have good moral and intellectual standing to beat the ass of the pro-criminal, biased lawyers hobbling the criminal law. The pro-criminal bias of the lawyer stems from job creation. It has a base, crass economic self-interest basis. These lawyers may be treated as any thief might be.

Posted by: Supremacy Claus | Oct 6, 2010 1:50:29 PM

"If, in the criminal justice context, "mercy" is defined as forgoing punishment that is deserved..."

...then the discussion should be very short.

But then since we can sensibly ask whether someone "deserves" mercy, that definition doesn't seem to be capture the core of mercy in its ordinary sense. Maybe a better way to think about mercy in the criminal justice context is as discretionary relief from punishment that is "legitimate" (because formalized as law) but, all things considered, undeserved. There's clearly room for mercy in that sense, and indeed prosecutorial and judicial discretion are (aspirationally, at least) two mechanisms through which it can be appropriately exercised.

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Posted by: Supremacy Claus | Oct 7, 2010 6:25:38 AM

Perhaps, in this context, mercy would be to fore go the full potential penalty? As it is said: "Eye for eye, tooth for tooth...." But were these not the maximum penalties and so to used only in the most egregious circumstances? Perhaps mercy is as much for the benefit of the "punishers" as for the "punished"? To punish all to the maximum extent possible can this be what we desire? Or even what the law mandates?

Posted by: Tim Rudisill | Oct 12, 2010 10:06:32 AM

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