Should We Be Merciful to the Merciless—mercy in Sentencing

• Publication year: 2021

Should We Be Merciful to the Merciless—Mercy in Sentencing

Doron Menashe

SHOULD WE BE MERCIFUL TO THE MERCILESS—MERCY IN SENTENCING

Doron Menashe^*

Abstract

The aim of this Article is to present a normative argument for mercy as a legitimate consideration in judicial proceedings, defining it as a distinct and independent element not encompassed by normal concerns of justice, retribution and individuation of sentencing.

The Article addresses two meanings of mercy in the judicial context, both of which have—in the view of the author—a rightful part in the process of judgment and sentencing. These are "mercy" in the weak sense, i.e., a deliberative state of mind which accompanies the judicial proceedings ("Lesser Mercy"), and "mercy" in the strong sense, i.e., the judicial prerogative of taking into account, under appropriate circumstances, mercy towards the defendant once convicted, as a deviation from strict retribution ("Greater Mercy").

The Article presents the different approaches one may find in academic literature pertaining to the validity of considering mercy in court, and the relationship between justice and mercy.

The Article begins with the basic moral intuition as to the merit of mercy. From this point of departure, the Article deals with the various criticisms raised against the legitimacy of considering mercy in the judicial context. In the normative analysis, the Article points to the need of formal justice to accommodate the particularistic circumstances of every incident. Although some have argued that this function should be met by equity, the Article argues that mercy is better suited because rational-analytical considerations may prove insufficient in this context.

The Article also argues that the judge's prerogative to determine under which circumstances to employ mercy towards the defendant does not contradict

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the responsibility and duty of the judge to impartiality. On the contrary, mercy lives harmoniously with and epitomizes the social values that every judge should represent.

Introduction.............................................................................................551

I. Conceptual Distinctions of Mercy............................................554

A. General Definition of Terms..................................................... 554
B. Mercy in the Weak Sense ("Lesser Mercy") ............................ 555
C. Mercy in the Strong Sense ("Greater Mercy") ........................ 557
D. True Mercy in Sentencing Based on the Assumption of Specific Legal Liability (the Existence of an Incriminating Findings, their Type and their Degree) .................................................... 559
E. Mercy Toward the Convicted Party Is not a Vested Right ....... 562
F. Mercy Emerges from a Perspective Recognizing the Principle of Retribution............................................................................ 563
G. Mercy Serves as a Balancing and Tempering Factor in the Judicial Context........................................................................ 566
H. Mercy Is Neither Equivalent to Forgiveness nor Dependent upon Forgiveness ...................................................................... 566
I. The Argument for Mercy Is Not a Call to Adopt a Blanket Policy of Lenient Sentencing .................................................... 567

II. The Existing Debate about the Place of Mercy in Court.....568

A. Principles of the Legal Debate about Sentencing..................... 568
B. The Main Approaches in the Legal Discourse on Mercy in Judicial Proceedings ................................................................ 571

III. Critical Analysis: Tension between the Concept of "Justice" and the Concept of "Mercy".......................................................573

A. General Overview ..................................................................... 573
B. The Conceptual Argument ........................................................ 573
C. The Argument of Arbitrariness ................................................. 578
D. The Argument of the Source of Authority ................................. 581
E. The Emotional Argument .......................................................... 583
F. The Antinomian Argument—The Inapplicability of a Moral Imperative to Emotional Reactions .......................................... 586
G. The Argument of Undermining the Principle of Guilt.............. 587
H. The Consequential Argument ................................................... 588
I. The Argument of Compassion for the Victims .......................... 589
J. The Argument of Human Pride and Dignity............................. 591
K. Summation of Critical Analyses ............................................... 592

Conclusion.................................................................................................592

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Introduction

It appears that there is no better point in which to discuss the concept of mercy, its definition, its moral and social purpose, and its limits, than when a judge determines the fate of a defendant. Ironically, legal scholars seem to shun any debate or discussion on mercy's role in the courthouse setting. This is no accident. At sentencing, the judge's discretion may be quite broad, and there is a perpetual tension between the judicial system's tendency to present the verdict's result as a "correct" and "just" legal decision; a product of objective analysis; and a consequence of calculated discretion which emerges from the rule of law, on one hand, and the fact that, the work of sentencing is profoundly human, sensitive work based on particular considerations and subjective impressions on the other.¹ The yearning for a strict formalization of punishment criteria² as a tool for reaching certainty and legitimacy in legal decisions

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challenges the ideal of flexible and sensitive human judgment which does not emerge from mathematical generalizations.³

This tension between the yearning for equality in sentencing and leaving a necessary place for particularistic considerations in the verdict exists even when one's sole objective is the realization of justice. It becomes even stronger when one evokes the concept of mercy, which appeals to emotion and may have subjective understandings and applications. Even if it is not explicit, the struggle with the question of mercy's place in the process of justice is certainly relevant.⁴

The concept of mercy in the judicial context is described in the legal literature as a weakness, a display of sentimentality where distant rationality is required, or an indulgence when a fitting penalty is required. The judge is seen as shrugging off his social responsibility and authority in order to employ dangerous arbitrariness, or perhaps even a subversive deviation from the sublime realization of justice. Thus, it is a defect in justice.⁵ Critics note that mercy has no role in criminal cases, because in the best-case scenario, the particularistic circumstances of the act or the defendant are subsumed under the heading of "justice," so that there is naturally no need to resort to "mercy" as a valuable consideration of independent significance. If incorporating mercy leads the court to a less severe result than that required by law and justice, it is indefensible.⁶ There are those who go quite far in condemning mercy in the context of criminal punishment: "Let them keep their [private] sentimentality to themselves for use in their private lives with their families and pets."⁷

However, such a negative and dismissive view of mercy is interpreted by many, in a deep and intuitive way, as a deficient and simplistic solution.

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Generally, those who embrace the concept of morality see mercy as a positive human trait, certainly in the abstract.⁸ Turning mercy from virtue to vice in the context of criminal justice, in which the individual is affected drastically and fatefully, is not self-evident, and it raises a line of conceptual and moral questions. Indeed, the tension between justice and mercy is a subject dealt with by philosophers, authors, playwrights, and thinkers, religious and secular alike.

It is perhaps ironic that in law, where the ultimate realization of this dilemma manifests, we see the most hesitation to directly address it. Other than in certain outlying cases, the discussion of mercy in law tends to revolve around two main approaches: 1) a skeptical, dubious approach to the role of mercy in judicial proceedings; and 2) attempts to resolve the tension between these concepts by proposing that legitimate considerations of mercy are already incorporated into other concepts, such as the concept of justice, and that therefore mercy can be reduced to these concepts.⁹ While thinkers debate and struggle, the legal community for the most part avoids engaging in open, frontal contention with this important dilemma, the silence is deafening.

This Article will argue mercy is integral to criminal justice and punishment. This Article will examine two conceptual perceptions of mercy: mercy in the "weak sense," being a deliberative state of mind which accompanies judicial proceedings; and mercy in the "strong sense," being a judicial prerogative for committing an act of grace towards the convicted party independent of the principle of retribution. In fact, there is nothing preventing the court from accounting for considerations of mercy in judicial proceedings, and courts that adopt such an approach do so well within their authority.

In arguing for mercy in the weak sense, this Article will point to the fact that this state of mind—regarded as an effort to view the proceeding through the eyes of the defendant and to understand their position—is a matter of necessity in the criminal justice system. It is essential precisely because of the wide discretion granted to the court, and the relatively weak determinacy of legal rules. Since the court cannot...