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Critical Mercy in Criminal Law

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Abstract

Much contemporary discussion of mercy has focused on what I call ‘beneficent mercy’: compassionately sparing a person from harsh treatment that she deserves. Drawing on Seneca’s discussion of mercy, I articulate a different concept of mercy which I call ‘critical mercy’: treating a person justly when unjust social rules call for harsher treatment. Whereas beneficent mercy is grounded in recognition of imperfection in human individuals, critical mercy is grounded in recognition of imperfection in human institutions. I argue that political communities have reason to authorize judges to grant critical mercy in criminal law. I contend with the objection that critical mercy appears to violate the ideal of the rule of law. I argue that where certain constraints are met, rule of law values in fact provide positive reason to authorize judges to grant critical mercy in criminal law.

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Notes

  1. Thomas More, Utopia (London: Penguin Books, 2003).

  2. The Latin title of Seneca’s work is ‘De Clementia’. ‘Clementia’ is translated as either ‘mercy’ (see Seneca, Moral Essays, trans. John W. Basore (London, U.K.: Heinemann, 1928) and Seneca, Dialogues and Essays, trans. John Davie (New York, NY: Oxford University Press, 2007)) or ‘clemency’ (see Seneca, De Clementia, trans. Susanna Morton Braund (New York, NY: Oxford University Press, 2009) and Seneca, Anger, Mercy, Revenge, trans. Robert A. Kaster and Martha C. Nussbaum (Chicago, IL: The University of Chicago Press (2010)). Throughout the article, I use ‘mercy’ rather than ‘clemency’.

  3. The following is a reasonably comprehensive list of contemporary publications about mercy, as of 2020:

    Jacob Adler, ‘Murphy and Mercy’, Analysis 50(4) (1990): pp. 262–268; Christopher Bennett, ‘The Limits of Mercy’, Ratio 17 (2004): pp. 1–11; Nathan Brett, ‘Mercy and Criminal Justice: A Plea for Mercy’, The Canadian Journal of Law and Jurisprudence 5 (1992): pp. 347–360; Andrew Brien, ‘Mercy and Desert’, Philosophical Papers 20 (1990): pp. 193–20l; Andrew Brien, ‘Mercy, Utilitarianism, and Retributivism’, Philosophia 24 (1995): pp. 493–521; Andrew Brien, ‘Mercy within Legal Justice’, Social Theory and Practice 24(1) (1998): pp. 83-110; Claudia Card, ‘On Mercy’, The Philosophical Review 81(2) (1972): pp. 182–207; David Cartwright, ‘Revenge, Punishment, and Mercy: The Self-Overcoming of Justice’, International Studies in Philosophy 17 (1985): pp. 17–26; David Dolinko, ‘Some Naive Thoughts about Justice and Mercy’, Ohio State Journal of Criminal Law 4 (2007): pp. 349–360; Antony Duff, ‘The Intrusion of Mercy’, Ohio State Journal of Criminal Law 4 (2007): pp. 361–87; Stephen Garvey, “‘As the Gentle Rain From Heaven’: Mercy in Capital Sentencing”, Cornell Law Review 81 (1996): pp. 989–1048; Ross Harrison, ‘The Equality of Mercy’, in Jurisprudence: Cambridge Essays, ed. Hyman Gross and Ross Harrison (Oxford, U.K.: Clarendon Press, 1992); Scott H. Hestevold, ‘Justice to Mercy’, Philosophy and Phenomenological Research 46(2) (1985): pp. 281–291; Heidi M. Hurd, ‘The Morality of Mercy’, Ohio State Journal of Criminal Law 4 (2007): pp. 389–407; Carla Ann Hage Johnson, ‘Entitled to Clemency: Mercy in the Criminal Law’, Law and Philosophy 10(1) (1991): pp. 109–118; John Kleinig, ‘Mercy and Justice’, Philosophy 44 (1969): pp. 341–342; Daniel T. Kobil, ‘Should Mercy Have a Place in Clemency Decisions?’ in Forgiveness, Mercy and Clemency, ed. Austin Sarat and Nasser Hussain (Stanford, CA: Stanford University Press, 2007), pp. 36–63; Dan Markel, ‘Against Mercy’, Minnesota Law Review 88 (2004): pp. 1421–1480; Ned Markosian, ‘Two Puzzles about Mercy’, The Philosophical Quarterly 63(251) (2013): pp. 269–292; Kathleen Dean Moore, Pardons: Justice, Mercy, and the Public Interest (New York, NY: Oxford University Press, 1989); Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge, U.K.: Cambridge University Press, 1988); Martha C. Nussbaum, ‘Equity and Mercy’, Philosophy and Public Affairs 22(2) (1993): pp. 83–125; A. T. Nuyen, ‘Straining the Quality of Mercy’, Philosophical Papers 23 (1994): pp. 61–74; Lyla H. O’Driscoll, ‘The Quality of Mercy’, Southern Journal of Philosophy 21 (1983): pp. 229–250; John Pearn, ‘The Quiddity of Mercy – A Response’, Philosophy 71 (1996): pp. 603–604; Adam Perry, ‘Mercy’, Philosophy and Public Affairs 46(1) (2018): pp. 60–89; George W. Rainbolt, ‘Mercy: An Independent, Imperfect Virtue’, American Philosophical Quarterly 27 (1991): pp. 169–173; George W. Rainbolt, ‘Mercy: In Defense of Caprice’, Noûs 31(2) (1997): pp. 226–241; W. Ransome, “‘Above the Sceptred Sway’: Retrieving the Quality of Mercy”, Crítica 40 (2008): pp. 3–27; H. R. T. Roberts, ‘Mercy’, Philosophy 46 (1971): pp. 352–353; Austin Sarat and Nasser Hussain, Forgiveness, Mercy, and Clemency, eds. Austin Sarat and Nasser Hussain (Stanford, CA: Stanford University Press, 2007); Mary Sigler, ‘The Story of Justice: Retribution, Mercy and the Role of Emotions in the Capital Sentencing Process’, Law and Philosophy 19(3) (2000): pp. 339–367; Alwynne Smart, ‘Mercy’, Philosophy 43 (1968): pp. 345–359; Daniel Statman, ‘Doing without Mercy’, The Southern Journal of Philosophy 32 (1994): pp. 331–354; Carol Steiker, ‘Tempering or Tampering? Mercy and the Administration of Criminal Justice’, in Forgiveness, Mercy and Clemency, ed. Austin Sarat and Nasser Hussain (Stanford, CA: Stanford University Press, 2007); James Sterba, ‘Can A Person Deserve Mercy?’ Journal of Social Philosophy 10 (1979): pp. 11–14; John Tasioulas, ‘Mercy’, Proceedings of the Aristotelian Society 103 (2003): pp. 101–132; P. Twambley, ‘Mercy and Forgiveness’, Analysis 36(2) (1976): pp. 84–90; Nigel Walker, ‘The Quiddity of Mercy’, Philosophy 70 (1995): pp. 27–37.

    A handful of these authors defend views of mercy that are closer to what I call critical mercy than to beneficent mercy. See Leslie Sebba, ‘The Pardoning Power: A World Survey’, The Journal of Criminal Law and Criminology 68(1) (1977): pp. 83–121; Walker, ‘The Quiddity of Mercy’, supra; Pearn, ‘The Quiddity of Mercy—A Response’, supra. As discussed infra, the definition of mercy that Adam Perry defends in ‘Mercy’ captures both concepts of mercy.

  4. Some authors make a stronger claim that mercy cannot be justified by reasons. Harrison, for example, argues that if mercy is ‘[con]strained by reasons’ or ‘given for reasons’, then it is not mercy. ‘The Equality of Mercy’, supra note 3 at pp. 109. H.R.T Roberts maintains that ‘a genuine act of mercy is always unjustified’. ‘Mercy’, supra note 3 at pp. 353. Most authors, however, maintain that reasons may, but do not necessarily, motivate or justify mercy.

  5. Rainbolt and Perry are examples of exceptions to the view that mercy must be motivated by sympathy, compassion, or some other special emotional concern for the recipient. These authors, as well as Markosian, also argue that the harsh treatment which mercy remits need not be deserved. Kleinig, Johnson, and Card reject the idea that mercy is distinct from justice. Smart, Walker, Brien, Card and Tasioulas reject the supererogatory nature of mercy, holding that mercy is morally required when certain reasons apply. Other authors, including Sterba and Rainbolt, are inclined to make distinctions within kinds of mercy, holding that mercy is sometimes obligatory and sometimes supererogatory.

  6. Tasioulas, ‘Mercy’, supra note 3 at pp. 125.

  7. Duff, ‘The Intrusion of Mercy’, supra note 3, and Harrison, ‘The Equality of Mercy’, supra note 3, discuss versions of this problem. Anselm also worries about this kind of problem about mercy in the theological context. See Anselm, Proslogion with the replies of Gaunilo and Anselm, translated by Thomas Williams (Indianapolis, IN: Hackett, 2001), ch. 11, 14.

  8. For authors who argue for rejecting (or reinterpreting) one of the features of the received view of mercy, see footnote 5.

  9. See Hurd, ‘The Morality of Mercy’, supra note 3; Markel, ‘Against Mercy’, supra note 3; Statman, ‘Doing without Mercy’, supra note 3; Harrison, ‘The Equality of Mercy’, supra note 3; Nuyen, ‘Straining the Quality of Mercy’, supra note 3; Murphy, J., Forgiveness and Mercy, supra note 3.

  10. Most critics refrain from making the strong claim that mercy tout court should be resigned to the trash heap. They do not object to the use of mercy in the context of interpersonal interaction (Hurd), private law (Murphy), and theology (Nuyen).

  11. For historical context, see Braund’s Introduction to her edition of Seneca, De Clementia, supra note 2.

  12. ‘On Mercy’, in Seneca, Dialogues and Essays trans. Davie, supra note 2 at 214.

  13. Ibid.

  14. Ibid. It was a common strategy to consider popular opinion and sometimes reject it as wrong. The strategy takes its cue from Aristotle’s method of considering popular opinions as endoxa (significant but rejectable views).

  15. ‘On Mercy’, in Seneca, Dialogues and Essays trans. Davie, supra note 2 at 217.

  16. Ibid.

  17. Ibid., 218.

  18. Ibid., 215

  19. ‘On Mercy’, in Seneca, Dialogues and Essays trans. Davie, supra note 2 at 214.

  20. ‘On Anger’, in Seneca, Dialogues and Essays trans. Davie, supra note 2 at 20. ‘[T]he equipment that is [anger’s] very own – the horse of torture, the cord, the gaol, the cross, the fires that encircles live bodies buried in the ground, the hook that drags along corpses as well, the different kinds of chains and of punishments, the tearing of limbs, branding of the forehead, the pits where monstrous beasts prowl: let anger be set in the midst of these implements, uttering a terrible and horrible shriek, more loathsome than all these instruments that let it vent its fury’.

  21. Ibid., 33.

  22. Ibid.

  23. Ibid., 20.

  24. See K. M. Coleman, ‘Fatal Charades: Roman Executions Staged as Mythological Enactments’, The Journal of Roman Studies 80 (1990): pp. 44–73.

  25. ‘I happened to go to one of the lunchtime interludes, expecting there to be some light and witty entertainment, some respite for the purpose of relieving people’s eyes of the sight of human blood: far from it… In the morning men are thrown to the lions and the bears: but it is to the spectators that they are thrown in the lunch hour’, (Seneca, Epistles 7, 3–4, as quoted in Coleman, ‘Fatal Charades’).

  26. ‘On Mercy’, in Dialogues and Essays trans. Davie, 209.

  27. For an interpretation of Seneca that echoes my own, see Paulo D. Barrozo, ‘Punishing Cruelly: Punishment, Cruelty, and Mercy’, Criminal Law and Philosophy 2(1) (2008): pp. 67–84. Barrozo maintains that Seneca did not just advocate leniency in specific cases, but rather pushed for overall penal reform on grounds that the Roman system was cruel. ‘On Mercy’, according to Barrozo’s interpretation is, ‘a systematic reflection on the repudiation of cruelty and the corresponding duty of mercy in the context of punishment’, (‘Punishing Cruelly’, 71). My interpretation of Seneca is different from, but not strictly inconsistent with Martha Nussbaum’s in ‘Equity and Mercy’. Nussbaum, ‘Equity in Mercy’, supra note 3, pp. 83–125.

  28. Aristotle, Nicomachean Ethics, trans. Terence Irwin. (Indianapolis, IN: Hackett, 1999), Bk. 5, Ch 10, 1137b, pp. 10–35. Aristotle limits his discussion of equity to laws. His discussion, however, can be applied to other social rules. See Nussbaum, ‘Equity and Mercy’.

  29. Ibid., 25.

  30. Beccaria seems to agree, maintaining that mercy should be excluded if the penal code were made perfect. See Cesare Beccaria, An Essay on Crimes and Punishments: the original fourth edition, ed. Adolph Caso. (Boston, MA: International Pocket Library, 1983), pp. 97–98.

  31. Moore, Pardons, supra note 3. Moore puts the point in terms of ‘pardon’ rather than ‘mercy’, but given my definition of critical mercy and her definition of pardon, the two are roughly the same. Moore explains that the French explicitly abolished the pardon power in 1789, but ad hoc procedures for clemency developed over the course of the following ten years. The pardoning power was formally granted to the First Consul in 1802.

  32. Perry, “Mercy”, supra note 3.

  33. The etymology of the term ‘mercy’ is another reason to call both beneficent and critical mercy ‘mercy’. The etymology of ‘mercy’ is often traced to the Latin ‘misericordia’ which means pity or sorrowful heart at the sight of another’s suffering. This etymological root supports the use of the term ‘mercy’ in the label ‘beneficent mercy’. There is another root that supports the use of the ‘mercy’ in the label ‘critical mercy’. The etymology of ‘mercy’ is also traced to the Latin ‘merces’ which means giving what is owed, payment that is due, or treatment that is deserved. Oxford Latin Dictionary.

  34. Pearn agrees that mercy is conducive to rooting out injustice in institutions and argues that ‘mercy is a necessary but not sufficient component for the evolution of a number of human institutions, of which the law is but one example’. Pearn, ‘Quiddity of Mercy’, supra note 3, pp. 603.

  35. I borrow the phrase ‘in charge’ from Jeremy Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’, Law and Philosophy 21(2) (2002): pp. 157.

  36. Fuller maintains that the rule of law is an ideal that is achieved, to a greater or lesser degree, when the law satisfies eight principles: laws must be general, promulgated, prospective, clear, non-contradictory, possible to keep, constant, and most importantly for my purpose, congruent with the actions of officials. Lon L. Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1969).

  37. Dan-Cohen and Marmor question the otherwise general agreement that congruence is needed for law to rule. They maintain that it is an open question as to whether there ought to be congruence between promulgated rules and official behavior. See Meir Dan-Cohen, Harmful Thoughts: Essays on Law, Self, and Morality (Princeton, NJ: Princeton University Press, 2002), pp. 38–40; Andrei Marmor, ‘The Rule of Law and its Limits’, Law and Philosophy 23(1) (2004): pp. 34–38.

  38. Rule of law values are by no means the only political values that appear to oppose a practice of critical mercy in a criminal justice system. Democratic values also appear to stand against critical mercy: the problem with an official off-roading from the path of law is not only that she goes off the path, but that the people constructed the path together and she is going off on her own. Future work should contend with this objection from the standpoint of democracy, but here I am limited to addressing the objection from the standpoint of the rule of law.

  39. Colleen Murphy, ‘Lon Fuller and the Moral Value of the Rule of Law’, Law and Philosophy 24(3) (2005): p. 250.

  40. Herbert Morris, ‘Persons and Punishment’, The Monist 52 (1968): pp. 475–501.

  41. Fuller, The Morality of Law, supra note 36, pp. 39–40.

  42. See Martin Luther King, Jr., Letter from a Birmingham Jail (New York, NY: Harper Collins, 1994).

  43. I draw heavily here on Joseph Raz, The Authority of Law (Oxford, U.K.: Oxford University Press, 1983), pp. 210–229.

  44. See Gerald J. Postema, ‘Trust, Distrust and the Rule of Law’, in Fiduciaries and Trust: Ethics, Politics, Economics and Law, ed. P. Miller & M. Harding (Cambridge, UK: Cambridge University Press, 2020): pp. 242–272.

  45. Tommie Shelby makes a similar point in ‘Justice, Self-Respect, and the Culture of Poverty’, paper presented at Philosophy Department Speaker Series, University of North Carolina, Chapel Hill, NC, January 15, 2010.

  46. See William Oliver, “‘The Streets’: An Alternative Black Male Socialization Institution”, Journal of Black Studies 36(6) (2006): pp. 918–937.

  47. See, for example, Jean Hampton, ‘Democracy and the Rule of Law’, Nomos 36 (1994): pp. 13–44; and Catherine Valcke, ‘Civil Disobedience and the Rule of Law. A Lockean Insight’, Nomos 36 (1994): pp. 45–62.

  48. Rawls suggests such an argument: ‘Sometimes we may be forced to allow certain breaches of the precepts of legality if we are to mitigate the loss of freedom from social evils that cannot be removed, and to aim for the least injustice that conditions allow’. John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press of Harvard University Press, 1999), p. 243. I have no objection to an argument of this structure in other contexts, but I think we can do better than this in the context of criminal law with respect to unjustly harsh sentencing laws.

  49. Richard S. Frase, ‘Limiting Excessive Prison Sentences under Federal and State Constitutions’, University of Pennsylvania Journal of Constitutional Law 11 (2008): pp. 39–71.

  50. See In re Lynch, 8 Cal.3d 410, 411 (1972); Humphrey v. Wilson, 652 S.E.2d 501, 510 (Ga. 2007).

  51. See Harmelin v. Michigan, 501 U.S. 957, 994 (1991).

Acknowledgments

Special thanks to Gerald Postema, Thomas Hill, Susan Wolf, James Kierstead, and Sari Kisilevsky for helpful comments on earlier versions of this paper.

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    Kristen Bell

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Bell, K. Critical Mercy in Criminal Law. Law and Philos 42, 351–378 (2023). https://doi.org/10.1007/s10982-022-09466-6

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