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Some Naive Thoughts About Justice and Mercy

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Some Naive Thoughts About Justice and Mercy Some Naive Thoughts About Justice and Mercy David Dolinko* A longstandingphilosophicalpuzzlesurrounds the relationshipbetween justice and mercy. For example, a judge sentencing a convicted defendant is under an obligation to impose a just sentence. At the same time, it is thought proper-indeed, meritorious-forthe judge, in an appropriatecase, to show mercy, taking account of specialfactorspresent in the case to conclude that she should impose a sentence more lenient than what "strictjustice" would callfor. But doesn't this mean that her merciful sentence must be unjust? The presentpaper, after reviewing the problem, suggests what might be a solution-at least for the use of "mercy" in judicial contexts-and examines some of the difficulties itfaces. The puzzling relationship between justice and mercy has bedeviled philosophers since Aristotle.' Mercy is ordinarily conceived as a virtue, as a free gift rather than something to which one has a right or entitlement, and as something distinct from justice (to which, of course, one does have a right). In appropriate cases mercy "tempers" justice, producing a different outcome than justice alone would call for. Yet isn't a deliberate departure from the requirements ofjustice an injustice? Jeffrie Murphy summarizes the puzzle well: [I]f we simply use the term "mercy" to refer to certain of the demands of justice (e.g., the demand for individuation), then mercy ceases to be an autonomous virtue and instead becomes a part of. justice. It thus becomes obligatory, and all the talk about gifts, acts of grace, supererogation, and compassion becomes quite beside the point. If, on the other hand, mercy is totally different from justice and actually requires (or permits) that justice sometimes be set aside, it then counsels injustice. In short, mercy is either a vice (injustice) or redundant (a part of justice).2 This puzzle about justice and mercy arises most naturally in legal settings: e.g., a judge imposing sentence, an executive granting a pardon, a prosecutor deciding whom Professor of Law, University of California, Los Angeles. "[W]hen we reason it out, it seems strange if the equitable, being something different from the just, is yet praiseworthy; for either the just or the equitable is not good, if they are different; or, if both are good, they are the same." Aristotle, Nicomachean Ethics, bk. V. 1137b1-6, in THE COMPLETE WORKS OF ARISTOTLE 1729, 1795 (Jonathan Barnes ed., 1984). For a discussion of Aristotle's use of the word translated here as "equity," and its close relationship to mercy, see Martha Nussbaum, Equity andMercy, 22 PHIL. & PUB. AFF. 83, 92-97 (1993). 2 Jeffrie G. Murphy, Mercy and Legal Justice, in JEFFRIE G. MURPHY & JEAN HAMPTON, FORGIVENESS AND MERCY 169 (1988) [hereinafter FORGIVENESS AND MERCY]. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 4:349 to prosecute and for what offenses, or a police officer responding to a minor offense with a verbal warning or a full-scale arrest.3 Yet mercy, we should remember, is not a concept confined to the universe of law.4 I display mercy, for example, by stopping to assist an elderly man who has fallen on a busy New York street and is unable to get up. I also act mercifully when, though believing I would be safer if I killed the victim of my robbery, who might otherwise identify me, I stay my hand because he is a fellow human being, likely with a family, who has already suffered enough at my hands.5 On the other hand, "justice," though not necessarily confined to legal contexts, does seem most at home there.6 We can, I suppose, say that a businessman who breaks a contract, a swindler who cons old people into giving him their life savings, or an armed robber or rapist behaves "unjustly," works "injustice" on his victims. But that is a rather artificial mode of speaking, little used outside of philosophical discussions. Ordinary people would be much more likely either to use the word "unfair" or to use some stronger or more precise term: the businessman is unfair; the swindler is callous and despicable; the armed robber and the rapist are "brutal" or "hateful" or "loathsome." Accordingly, justice and mercy appear to conflict most often in a legal context.7 Consequently, this article will focus (perhaps too exclusively) on legal situations. We can narrow our focus even further by noting that justice and mercy are most often alleged to clash when it comes to questions of punishment. Should we insist on punishment that gives each offender what she deserves? Or may we, in certain cases, 3 See Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (arrest for misdemeanor punishable only by fine is constitutional). 4 Some writers have claimed that mercy is at home only in legal contexts. N.E. Simmonds, for example, insists that mercy is "inseparable from the framework of juridical thinking, exhibiting its distinctive and autonomous character only in the specific context of judgment." N.E. Simmonds, Judgment and Mercy, 13 OXFORDJ. LEGAL STUD. 52,52 (1993). Yet Simmonds himself refers to George Orwell's compassionate refusal to shoot a fleeing fascist soldier as "his act of mercy," despite the complete absence of a legal or juridical framework in the heat of battle in the Spanish Civil War. Id.at 62. 5 Some would insist that my second example is not one of mercy at all. They contend that "one man shows mercy to another when he waives his right over that person"-and, of course, I had no right to kill my victim. P. Twambley, Mercy and Forgiveness, 36 ANALYSIS 84, 86 (1976). See also KATHLEEN DEAN MOORE, PARDONS: JUSTICE, MERCY, AND THE PUBLIC INTEREST 188-89 (1989). 1see no reason, however, to deviate in this manner from ordinary usage, in which "mercy," as the Oxford English Dictionary tells us, means "[ florbearance and compassion shown by one person to another who is in his power and who has no claim to receive kindness; kind and compassionate treatment in a case where severity is merited or expected ' (emphasis added). See John Kleinig, Mercy and Justice, 44 PHIL. 341, 341 (1969). 6 "Perhaps the first point that strikes us when we reflect upon our notion of Justice is its connexion with Law." HENRY SIDGWICK, THE METHODS OF ETHICS 265 (7th ed. 1907). 7 Observe, for example, that my assisting the fallen man is quite unlikely to be thought to conflict with justice at all (unless, say, my assistance will make me miss a friend's wedding, at which I have promised to be best man and am carrying the rings). 20071 SOME NAIVE THOUGHTS ABOUT JUSTICE AND MERCY have mercy on the offender and inflict less punishment than she deserves? Punishment itself, of course, has long been a source of contention-why is it ever justified? The principal answers that legal philosophers have given are either consequentialist (deterrence, reform, or incapacitation) or retributivist (focused on giving the offender what he deserves). There is a widespread consensus8 that the relationship of mercy and justice is a problem primarily for retributivists. The paradox arises only if we regard justice and mercy as virtues that are equally autonomous and non-derivative. If each virtue were to be regarded as derived from some more fundamental value common to both, the relationship between them would be one of competition but not paradox. For example, a utilitarian might regard the value ofjustice as a subordinate value concemed with the general advantages of rule-following; mercy might then be seen as expressing the desirability of parsimony in the use of coercive sanctions to enforce rules. 9 Accordingly, this article will concentrate on a retributive theory of punishment whose central principle is that justice requires giving each offender what he deserves. One might object that the very existence of a difficulty here assumes that justice cannot be trumped-that it must prevail over any conflicting considerations. Otherwise the assertion that mercy, in appropriate contexts, can override justice would hardly appear problematic. Yet in actual practice we do not invariably adhere to the notion that the claims of justice cannot be overridden-certainly not if we equate justice to "giving people what they deserve." Joel Feinberg pointed out more than forty years ago that "a person's desert of X is always a reason for giving X to him, but not always a conclusive reason," and "that considerations irrelevant to his desert can 8 See Claudia Card, On Mercy, 81 PHIL. REV. 182, 183 (1972) (stating that Smart "has argued convincingly that mercy... makes good sense only on a retributive, or partially retributive, theory of punishment"); R.A. Duff, Justice, Mercy, and Forgiveness, 9 CRIM. JUST. ETHICS 51, 58 (Summer/Fall 1990) (stating that "on a full-blooded retributivist view ... to show mercy to a criminal ... is to act unjustly and thus wrongly"); Stephen P. Garvey, Is it Wrong to Commute Death Row?: Retribution, Atonement, and Mercy, 82 N.C. L. REV. 1319, 1321 (2004) ("Mercy is typically defined in relation to retribution."); Jeffrie G. Murphy, Mercy and Legal Justice,in FORGIVENESS AND MERCY, supra note 2, at 166 (noting "widely held" view that mercy "requires a generally retributive outlook on punishment and responsibility"); Alwynne Smart, Mercy, 43 PHIL. 345,356 (1968) ("The notion of mercy seems to get a grip only on a retributivist point of view."). 9 Simmonds, supra note 4, at 53. As this quote indicates, the justice-mercy conundrum could arise for some consequentialists-those who are "value pluralists" and do not believe that both justice and mercy are derivative from one common value. Moreover, note Joel Feinberg's claim that "[t]he claims ofjustice are hardly exhausted in the vacuous principle that everyone ought, ceterisparibus,to get what he deserves." Joel Feinberg, Justice and PersonalDesert, in DOING AND DESERVING 80 (1970).
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