MERCY: Reading over Dan Markel’s forthcoming article “Against Mercy,” alongside the first chapter of James Q. Whitman’s book Harsh Justice, I’m wondering if it’s possible to give a coherent account of mercy as an actual bona fide virtue, as opposed to something (a) employed for pragmatic ends, (b) synonymous with discretion, (c) flatly contrary to the demands of justice (because based on caprice, bias, etc.).

Let me first distinguish, in a rough and ready fashion, between mercy and forgiveness. Following most contemporary accounts (which in turn follow Bishop Butler), I take forgiveness to be the foreswearing of resentment against another for something he’s done. By contrast, mercy doesn’t involve the foreswearing of resentment, but only the withholding of punishment (so, to borrow from Markel, mercy seems to involve some overt act or restraint, forgiveness can in principle be done without anything overt). In tying mercy closely to the withholding of punishment, I may be conflating it with “pardon,” but for the purposes of this note, that’s fine. So mercy is properly considered a virtue within a juridical framework; forgiveness is more purely “moral.”

I take it that mercy can be granted for all sorts of pragmatic reasons: you may need to cooperate in the future with the person who’s wronged you, the punishment may be costly, and have no deterrent effect, etc. But to see mercy as a strictly strategic virtue doesn’t seem to do justice to the exalted status we give to it. To be sure, a pragmatic virtue is still a virtue (prudence is a virtue after all), but one would have thought mercy granted would be virtuous in its own right, not merely as a means to some further end.

Nor is it clear that giving legal officers discretion in how they punish is enough to capture the virtue of mercy. Merely allowing judges leeway in deciding the harshness of a particular sentence, or to give police officers the option to pursue or not to pursue certain criminals. In fact, these methods of discretion, especially in the case of judges determining sentences, can be used to further justice rather than mercy – by making the punishment more accurately reflect what’s due from the wrongdoer for his crime. When a judge does this, he’s simply using the law to further the demands of just punishment. Likewise, in the case of giving police officers room to decide what crimes they’ll go after, this needn’t be about being more or less merciful, but only about being careful about the use of scarce social resources. Here, we shouldn’t call “merciful” what is basically prudence (unless we take mercy to be a purely pragmatic value, something I want to urge us against).

This is why I find somewhat confusing Whitman’s discussion of mercy in Harsh Justice. He contrasts mercy with harshness, so that the more “harsh” a criminal law regime is (say, it punishes for morals offenses, or it lets few offenses go unpunished, or it gives inflexible sentences), the less “merciful” it is. I think making the contrast this way confuses things – it seems better to contrast harshness with justice, rather than with mercy, at least in many of the items Whitman lists as making a regime more or less harsh. For example, Whitman writes of “harshness in the inflexibility of punishment” that “this is the harshness of applying unvarying punishment regardless of any sense of the individual deserts of offenders.” Yet it seems to me that if we’re ignoring individual desert, we’re being unjust; recognizing individual desert as the basis of punishment isn’t being merciful, because it’s what justice requires.

Also, the fact that some criminal law systems have morals offenses, and some let few offences go unpunished – these factors seem to be quite different than mercy. With morals offenses, there is the separate debate of whether in fact there should be any morals legislation – whether this violates privacy, etc. To have or not to have morals laws means settling this debate, rather than deciding to be merciful or not. And when few offenses go unpunished, there are two questions here. First, what particular offenses does the particular regime designate as criminal? If the offenses are all ones we recognize as offenses, then lax enforcement is a problem, not a virtue. Second, we need to ask: for what reasons are these offenses going unpunished? The primary answer to this, I would think, is because of scarce social resources, rather than the mercy of the police: and again, in this case, it’s discretion that’s being invoked, not mercy.

At the same time, it’s true that when we give leeway to judges in deciding sentences or to police officers in determining which crimes to go after, we are allowing space for mercy to be granted. But we should be clear about what this involves: with the judge, it means handing down a sentence to an offender that is less than he deserves; with the police officer, it means not pursuing someone who has engaged in a criminal act (and not for reasons of scarce social resources). And these two things seem to be straightforwardly violations of justice, because those who have done wrong aren’t getting punished as they should.

The trouble is that when mercy is granted in these cases, it can sometimes seem to be a good thing, and not just for pragmatic reasons. Mercy, I want to say, can be a virtue in its own right. But giving an account of why it is a virtue, I think, is very hard to do. We seem to be left with an empty space needing to be filled in. Perhaps this is because mercy is a theological virtue, supposing a metaphysics we’ve since outworn. Yet, as may be the case with many virtues, transposing mercy into a theological key merely puts the problem on a different level; it doesn’t solve it. For when we counsel, “judge not, lest ye be judged,” aren’t we turning mercy into a pragmatic virtue? So the problem of mercy as a virtue in its own right, as something intrinsically good, remains.

- posted by Chad @ Saturday, July 05, 2003