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February 21, 2016

"Equity, Not Mercy"

The title of this post is the title of this notable paper by Mary Sigler just posted to SSRN. Here is the abstract:

In a variety of criminal justice settings, the term mercy is used broadly to refer to almost any instance of remitting the harshness of punishment.  Although unobjectionable as a colloquial matter, this indiscriminate usage is conceptually problematic.  Mercy understood in this broad sense distorts at least two concepts that are essential to our moral life. Specifically, the broad use of mercy denies us the conceptual resources to assess the distinctive operation of traditional mercy — an act of grace that cancels or mitigates what is due out of compassion or concern for the recipient.  Perhaps more important, broad mercy effectively diminishes the concept of justice, alleviating the pressure it would otherwise exert to redress claims of right.

I first consider the concept of mercy in both its traditional and broad senses.  I then turn to equity as an alternative. Equity, like mercy, operates within the realm of discretion; but unlike mercy, equity aims at justice.  In the legal context, equitable judgment represents a form of guided discretion in which decision making is both searchingly particular and constrained by authoritative standards of justice.  A careful analysis of the concept of discretion underscores both the promise and pitfalls of the discretion with which we empower actors in the criminal justice process. Equity, not mercy, should structure their deliberations.

February 21, 2016 at 10:04 PM | Permalink


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