December 24, 2010
A fitting book for the holiday season
The problem of ‘justifying’ mercy is old, but it has resurfaced recently in light of debates over ‘restorative justice’ alternatives to state-imposed retributive punishment. We wonder whether a victim/offender reconciliation that does not involve a painful sentence can be just; we wonder whether an executive is ever right to pardon out of compassion; we wonder whether judges should have discretion to sentence leniently in cases where defendants are remorseful, have dependents, are ill, have reformed, or are community heroes. Within the retributive punishment tradition that understands punishment as some form of ‘just deserts’ based on the crime alone, all of these exercises of leniency are illegitimate.
This book challenges this orthodoxy at its Kantian conceptual roots, rereading the philosophical tradition to argue that mercy is the prerequisite for just punishment, rather than its nemesis. The first step is taking seriously the idea that humans live with each other in time, not as isolated "reasoners" or "choosers" in a conceptual eternity.
From this insight follows an account of law as common law, not universal rules; an account of punishment as a response to wrongs that resettles relationships for the future in conditions of uncertainty; and an understanding of mercy as a fundamental ethical requirement never to give up on each other. By unearthing an alternative to our "just deserts" apologies for a cruel and broken penal system, the hope is that all the rich institutional possibilities imagined by the restorative justice movement will become more conceptually acceptable and available.
Though this book is not focused on the form of mercy represented by grants of clemency, this holiday season is seeing its share of notable clemency stories. As always, P.S. Ruckman has the best coverage of these clemency developments at his blog Pardon Power.
December 24, 2010 at 05:25 PM | Permalink
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Under 123D, a murderer may be sent home, a shoplifter may be executed. The essential is the utilitarian calculation. It pays to send home a boy who killed his alcoholic, violent, criminal father in the middle of his abusing the other children, when the defendant has no sociopathy or likelihood of hurting others. It pays to execute a violent drug kingpin caught shoplifting. The calculation factors in the character of the defendant, most heavily.
Authorities making such calculations should be held accountable in torts if their carelessness harms a future victim of the defendant.
Posted by: Supremacy Claus | Dec 25, 2010 10:31:03 AM