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March 26, 2012

The Machinery of Criminal Justice #4: The Decline of Mercy

[Stephanos Bibas, guest-blogging]

In one of last week's posts on my new book, The Machinery of Criminal Justice, I noted that colonial criminal justice left room for mercy. Today I'll contrast how justice over the past two centuries has grown increasingly mechanistic and squeezed mercy out of the system.

Colonial justice embraced mercy as unfettered sovereign grace and individualized moral assessment. But to Enlightenment minds and scientists, mercy was arbitrary. Rational criminal justice, they thought, demanded equal, predictable deterrence, and mercy undercut deterrence.

Sustained criticism of exective clemency gradually restricted its use, and states gradually regulated pardons and commutations, making hearings more formal, closed to the public, and even ex parte. The clemency power, like jury nullification, came to seem lawless and unpredictable. The administrative ideal of equality across cases seemed to conflict with individualized justice and compassionate mercy. Thus, both executive clemency and jury nullification dwindled.

Another limit on mercy was the trend from indeterminate or unstructured sentences to structured sentencing guidelines. Reformers decried the dangers of arbitrariness, bias, and disparity in sentencing judges' unfettered discretion. Thus, the federal and more than a third of state sentencing systems enacted guidelines and mandatory minimum penalties to cabin harshness and mercy. The main discount available under the federal guidelines that could have related to mercy is an acceptance-of-responsibility discount. In practice, it has little to do with remorse or repentance and everything to do with whether a defendant pleads guilty.

Back in the colonial era, penalties were fixed and so nominally even less flexible than they are today. In practice, however, the rule-bound system was far more flexible than it seemed. Jurors frequently acquitted or convicted defendants of lesser offenses, and judges procured clemency for sympathetic defendants. Jurors knew the sentencing consequences of their decisions; indeed, judges advised them to take sentences into account in deciding whether to convict and for which crimes.

Today, however, jurors usually do not know the penalties, and judges instruct them to disregard sentencing in reaching their verdicts. Jurors cannot serve as the conscience of the community when they do not know what punishments they are authorizing (except in capital cases, where jurors must at least find the defendant death-eligible).

The one substantial source of leniency left is prosecutorial discretion. Prosecutors can decline to charge, drop charges, sign cooperation agreements, and recommend mercy in various other ways. Particularly sympathetic defendants may receive mercy as a result. More often, however, prosecutors use these tools as plea-bargaining chips, rewarding guilty pleas and punishing protracted litigation irrespective of the usual grounds for mercy.

This discretion hardly corresponds to the colonial model of transparent, accountable, individual moral evaluation. Unlike executives and juries, prosecutors retain discretion in part because their decisions are hidden from criticism and in part because they are supposedly making expert decisions about ranking priorities. Far from serving substantive justice and mercy, the discretion that remains in the system drives the plea-bargaining machinery.

So, that's all for now on the descriptive account of the historical changes from the colonial through the modern eras. In my last few guest posts this week, I'll offer several suggestions about how to make our punishments more transparent, pro-social, and reintegrative.

Stephanos Bibas, guest-blogging

March 26, 2012 at 02:39 PM | Permalink


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Thank you very much for your thoughtful and helpful description. What I take away is that our social control practices have become more and more institutionalized. Social institutions eventually rot away, becoming impediments. Social institutions are a function of what the cognitive scientists call System 1, an intuitive way or mode of thinking about things. (Kahneman) I will be interested in your recommendations for change. Presumably they will involve System 2, which is deliberate way of thinking; a paradigm shift.

Thank you again.

Posted by: Tom McGee | Mar 26, 2012 3:26:27 PM

Interesting. One aspect of colonial, or Puritan justice, that cannot be replicated, I fear, is the closeness of community. "Community" kept everyone in everyone else's business and helped magistrates and constables make discretion-laden decisions in individual cases. There's a wonderful execution narrative about a woman of color named Patience Boston, who was executed for killing her master's son. One of my favorite details in the narrative is that she apparently had a habit of falsely reporting herself guilty of infanticide. On one occasion, she turned herself in for killing her own child. The magistrates ordered that women in the community examine her to see if she had, in fact, given birth. When the women reported that she had not, the magistrates sent her on her way. That detail strikes me as heavily dependant on the nature of the Puritan community.

I will have to pick up your book. I'm especially interested in how, or if, people of color (or, more broadly, servants) were granted any kind of mercy.

Posted by: Donna Coltharp | Mar 26, 2012 4:13:32 PM

Mercy will continue to diminish,
unless conservatives see justice
for victims in the form of
meaningful punishment.

Examples include: the return to
the swift use of the death penalty,
the execution of rapists,
the decline of the psychological defense,
& fulfilled sentences [e.g. life = life].

To be simple, since liberals have gained
so much heretofore, it is unlikely that
conservatives will give any more in terms
of being more merciful to convicted criminals.

Posted by: Adamakis | Mar 29, 2012 11:28:45 AM

Very interesting to read from you,is like we are thinking in the same way. I am a lay man, a prison chaplain in Nigeria and the initiator for a small NGO in Nigeria. It is the same spirit that is working across the globe. It is so worst here in Nigeria that when a criminal is sentence to death they don't consider mercy for such person. The so called Board of Prerogative of Mercy have a yardstick to grant amnesty to the prisoner who is serving a minor offense or about few days to complete the sentence.The major reasons for initiating the organization is to advocate for mercy on repented offender especially those on death row and serving life imprisonment. Much more voices are needed to revive mercy in the conscience of those in the hem of the affairs of our nations. Mercy is one of the attribute of God. I will definitely want to read more from you sir. Please keep me posted. I will be glad if you can read through one of the case am pursuing now on my web site and let me have your suggestion.

Posted by: Hezekiah Olujobi | Mar 31, 2012 11:07:03 AM

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