MERCY AND CRIMINAL JUSTICE Kristen Bell A dissertation submitted to the faculty of the University of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of Philosophy. Chapel Hill 2010 Approved by: Gerald Postema Susan Wolf Thomas Hill Ryan Preston-Roedder Michael Corrado ABSTRACT KRISTEN BELL: Mercy and Criminal Justice (Under the direction of Gerald J. Postema) This dissertation analyzes criminal justice from the perspective of non-ideal theory. In the first half of the dissertation, I propose a new understanding of mercy as a moral response to injustice within existing criminal justice systems. In the second half, I argue that certain expressions of blame are an injustice plaguing most criminal justice systems. In short, I am highlighting a new type of injustice and suggesting a new mode of response to injustice. In my analysis of mercy in Part I, I distinguish between two concepts of mercy in Western political thought: negative mercy and positive mercy. To grant negative mercy is to compassionately spare someone from harsh treatment that she deserves. To grant positive mercy is to respond to someone justly when unjust social rules call for a harsher response. Following Seneca and departing from most contemporary philosophical literature, I focus on the concept of positive mercy. I argue that officials within criminal justice systems have moral reason to exercise positive mercy and that most political communities have moral reason to incorporate a general practice of positive mercy into their criminal justice systems. I argue that judges who exercise positive mercy are not impermissibly derogating from rules in service of personal feelings, but are rather serving the rule of law and fulfilling their obligation to support just institutions. ii In my analysis of blame in Part II, I identify a species of blame that I call abrasive blame: the expression of attitudes meant to hurt a person because she did something wrong. The political community expresses abrasive blame toward criminal offenders through the organ of the criminal justice system. Although I argue that this abrasive blame is permissible under certain conditions, the justification is fragile at best. I argue that it is unfair for the political community to abrasively blame battered offenders and fragile offenders. I raise a red flag about abrasive blame toward these offenders; I do not argue that it is necessarily wrong to punish them. I suggest that in some cases, the exercise of positive mercy might be the political community’s best response to these offenders. iii ACKNOWLEDGMENTS The committee that has supervised my dissertation has been nothing short of outstanding. Special thanks to Gerald Postema, my primary advisor, for his commitment to guide me through this intellectual journey. He has been extremely giving of his time, patience, and philosophical enthusiasm. I am especially grateful for his seminar in legal philosophy in my first year and the fact that he has challenged me from day one until day done. Thanks to Susan Wolf for her thoughtful, challenging, and constructive comments. I am grateful for the four seminars I had with her, especially the seminar on Freedom and Responsibility. Discussions and work from that seminar inform Chapter 3 of this dissertation. Thanks to Tom Hill for teaching me that the best objection is a positive proposal and to keep seeking a deeper understanding. I am grateful for conversations with Ryan Preston-Roedder about all the ideas in this dissertation. His suggestions and challenges were especially helpful in Chapters 4 and 5. Thanks also to Michael Corrado for help in the early and late stages of the process, his comments helped me develop the ideas in Chapters 1 and 2. I have been honored to be a member of the UNC Philosophy Department, a true philosophical community. Thanks to Matt Kotzen, Bob Adams, and Jim Lesher for serving on my proposal committee. I am grateful for Jim Lesher and his wife Eleanor for their help with Seneca and Latin. Thanks also to Marilyn Adams for very insightful discussion of both positive and negative mercy in Anselm. iv Thanks to Clair Morrissey for conversations, constructive suggestions, and advice at every stage in this process. Special thanks to Emily Kelahan and Elanor Taylor for an “accountability scheme” that kept my project on track. Thanks to Emily for her keen interest in the project and her useful contributions to the argument (without her friendly urge to do more history, my mention of Seneca would be limited to a footnote). Thanks to Elanor for travelling the road of graduate school alongside me. I am grateful for all the times I have learned from her and leaned on her. Thanks also to Adam Cureton, Katie Elliot, Emily Given, Benjamin Bagley, Seth Bordner, Eric Mandelbaum, and Cathay Liu for helpful comments. I am indebted to the philosophy department and Ethics in Society program at Stanford University for paving the road that led to this dissertation. I am grateful to Tamar Schapiro for advising and to Michael Bratman for infecting me with questions about moral responsibility that I have not stopped thinking about. The process of writing this dissertation was made much easier by the daily support, advice, and laughter of my roommate Sharif Razzaque. The fact that he woke up at 6am to work in moral support – while on vacation – deserves acknowledgement in and of itself. Special thanks to Christian Loew for believing in me and helping me “use the time.” Thanks also to him for valuable conversations and suggestions. Thanks to Café Driade for fueling this dissertation with espresso. I would never have embarked upon or carried out this intellectual journey without the support of my family. Thanks to my aunt for proofreading and to my grandmother for her continual interest, support, and final editing assistance. My sister Andrea has served v as the best “team dissertation” captain I could ask for. Without her genuine interest in talking to me about philosophy, I would not have found my own voice. My deepest debt is to my parents. I could not have completed this dissertation without their love and support day in and day out. Thanks to Mum for phone calls, cards, editing assistance, and for her courageous attitude to feel fear and do it anyway. Thanks to Dad for good advice (although I’d never admit it at the time), for help in times of crisis, understanding, and for hugs at just the right time. Thanks to them both for teaching me the value of education, the drive to work hard, and the importance to think for oneself. I remember talking to my father about the first long philosophy paper I wrote. “Do you actually believe that, Kristen?” “Well, I mean, kind of.” “Sounds like you need to do some more thinking.” I ended up thinking for six more years. Thanks Dad for the drive to start and thanks Mum for the patience to see it through. vi TABLE OF CONTENTS INTRODUCTION: “WHAT IS TO BE DONE?” ........................................................ 1 PART I. .............................................................................................................................. 9 CHAPTER 1: TWO CONCEPTS OF MERCY ........................................................... 9 SECTION I: NEGATIVE MERCY ...................................................................................... 12 SECTION II: SENECA ’S MERCY ...................................................................................... 18 SECTION III: POSITIVE MERCY ...................................................................................... 31 SECTION IV: STUMBLING BLOCKS FOR NEGATIVE MERCY ........................................... 40 CHAPTER 2: DEFENSE OF POSITIVE MERCY ................................................... 45 SECTION I: OUTLINING A PRACTICE OF POSITIVE MERCY ............................................. 47 SECTION II: LAW -ABIDING POSITIVE MERCY ............................................................... 51 SECTION III: OUTLAW POSITIVE MERCY ....................................................................... 55 Rule of Law and the Case Against Positive Mercy .................................................. 58 The Strategy of My Response ................................................................................... 66 Positive Mercy in Service of Law’s Rule ................................................................. 70 SECTION IV: AN OBJECTION ......................................................................................... 87 CONCLUSION OF PART I: ................................................................................................ 92 PART II............................................................................................................................ 95 CHAPTER 3: THE STING OF BLAME .................................................................... 95 vii SECTION I: ABRASIVE BLAME ....................................................................................... 98 SECTION II: IS ABRASIVE BLAME PERMISSIBLE ?......................................................... 105 SECTION III: REASONABLE DISAGREEMENT ON ABRASIVE BLAME ............................. 109 The Qualified Retributivist ..................................................................................... 110 The Hard Incompatibilist ........................................................................................ 112 The Qualified “Pacifist” .........................................................................................