A strategy for mercy.

Author:Misner, Robert L.

The criminal justice system has taken on a very cold edge. The public's determination to view crime as a moral issue rather than a utilitarian issue(1) has caused the debate on punishment to shift from the rhetoric of utilitarianism and the individuation of punishment(2) to the language of retribution(3) and just deserts.(4) The shift has been more than symbolic: With the overwhelming support of the electorate, the criminal justice system has embraced sentencing guidelines,(5) mandatory minimum sentences,(6) broader prosecutorial discretion,(7) public humiliation of certain offenders,(8) less tolerance of juvenile crime,(9) the demise of parole,(10) and a renewed dedication to capital punishment.(11) These changes, which are intended to reflect the public's moral outrage at crime,(12) have resulted in more persons being incarcerated(13) for longer periods of time(14) and at very high costs.(15)

But what if a legislator, whose personal value system stresses the virtue of mercy, is at odds with his political savvy that tells him crime will continue to be debated as a moral issue? What if he were to conclude that the criminal law has gone beyond the limits needed to respond to legitimate societal concerns about crime?(16) What strategy might a legislator employ, armed with the harsh data of the criminal justice system,(17) to introduce the virtue of mercy into the debate on crime in order to recapture a sense of humaneness while respecting the broad public support for retribution-based punishment?(18) Can a legislator, for example, convince other legislators that mercy permits the issue of drug control to focus primarily on treatment while at the same time acknowledging the general political pressure imposed by the public to go to the upper limits of punishment?(19)

The development of any political strategy generally includes a return to the topical debates of past battles. Because mercy plays such a prominent role in religion,(20) literature,(21) and philosophy,(22) one might anticipate that mercy, as it affects the value systems of the country, would have impacted the public debate on punishment. Nothing could be further from the truth. Mercy is discussed rarely in legal literature,(23) and mercy as a topic for public policymakers, such as legislators(24) and prosecutors,(25) is virtually nonexistent.(26) The development of a strategy for mercy requires the policymaker go elsewhere.

If one assumes that the various strands of philosophical thought on retribution and mercy are likely to have counterparts in the world of public opinion, a legislator can gain valuable assistance in creating a strategy for mercy by turning to the rich literature of the philosophy of punishment, supplemented by the more limited literature on mercy, to discover what political dangers may be lurking when advocating a strategy for mercy.

Because mercy requires a retributive theory of punishment,(27) a strategy for mercy must first contend with the realization that retribution is more complicated than simply distributing just deserts to offenders.(28) Voters and fellow legislators are likely to entertain multiple meanings of retribution. Some retributionists emphasize the emotional aspect of retribution,(29) while others stress the value-setting role that retribution plays.(30) For some, retribution confirms that people are fundamentally economic agents, and punishment is the method society uses to enforce a theory of mutual burdens and benefits.(31) Still other retributionists center on punishment as a societal method for reestablishing the inherent worth of the victim.(32) Some retributivists blend retribution and utilitarianism,(33) A strategy for mercy must take these differences of emphasis into account.

Second, a strategy for mercy must recognize that mercy is a concept that contains apparent contradictions. At the heart of any debate on mercy are the paradoxes of mercy noted by the eleventh-century philosopher, St. Anselm of Canterbury.(34) Anselm's first paradox captures two thoughts. If justice is punishment actually deserved, and mercy punishes less than that which is deserved, then mercy appears to be injustice and therefore a vice.(35) Alternatively, if there are merciful factors that should be taken into account in judgment, mercy is part of justice and therefore a redundancy.(36) Anselm's first paradox, when discussed with the various strands of retribution, raises strong political issues of justice from a normative, noncomparative point of view centering upon justice to a particular person without concern as to punishment afforded others. A strategy for mercy must contend with the political attraction that claims of noncomparative justice have for voters.

Anselm's second paradox poses the difficult question whether mercy, which is undeserved and therefore discretionary, naturally results in the unequal application of the law.(37) The second paradox raises the difficulty of discretion in a diverse society and centers on the fairness of the individuation of punishment from a comparative point of view. Therefore, a strategy for mercy must also contend with the political attraction that equal application of the law has for voters.

This Article concludes that a strategy for mercy can minimize public opposition if the strategy recognizes a few guidelines. First, some objections to mercy in decision making will be less forceful if mercy is exercised in areas of nonviolent crime that do not also create strong emotional responses by society against the offender and in those in which utilitarian concerns of deterrence and incapacitation are not overwhelming. Likely candidates for merciful treatment include areas in which the criminal conduct is fairly widespread so that some ambiguity exists as to the degree of moral culpability of the wrongdoer as well as in those areas in which issues of poverty, illiteracy, and unemployment often engender a degree of general compassion.(38) Second, some objections to mercy in decision making will be less forceful if mercy is extended to offenders whose criminal conduct does not create particularized victims who have suffered compensable damages and who can readily compare their cases to similar cases. The particularization of victims can result in strong, vengeful reactions that also call into play issues of injustice and inequality of treatment for both the offender and the injured person.(39) Failure to punish an offender to the fullest may be seen as an act of indignity and disrespect to the victim.(40) Third, objections to mercy will be lessened if mercy is shown to offenders who not only fail to gain socially or economically from their conduct, but rather who, through their conduct, place themselves in socially disadvantageous positions. In the long run, the exercise of mercy may alter beliefs of some socially estranged offenders who have concluded that they are not likely to share equally in the benefits of society even if they refrained from illegal conduct.(41) Fourth, a strategy for mercy must lead to judgments that do not appear to condone criminal conduct. A strategy might not forego punishment in its entirety but rather opt for reduced or alternative punishments to avoid the conclusion that persons can violate certain laws with impunity.(42) Fifth, because mercy is necessarily a derivative of guilt, a strategy for mercy must be careful to first respect the procedural rights of the alleged offender.(43) Finally, to avoid the appearance of inconsistency with justice, a strategy for mercy should focus on those areas of decision making in which society willingly tolerates "soft retributivism."(44) Objections to mercy will be less forceful if the strategy distances itself from particularized facts of individual cases and focuses instead upon mercy as a legislative factor affecting whole categories of crime.(45) Because the legislature stands as the final arbiter of what constitutes a crime and what factors, if any, will be considered in sentencing, a focus on mercy at the legislative level also counters any objection that mercy and justice are simply redundant concepts.(46) By centering a strategy for mercy upon legislative decision making, there is an opportunity to lessen the most compelling objection to mercy: that mercy is inconsistent with the equal administration of justice.(47)

Initially, the challenge facing a strategy for mercy may be to create a merciful system that avoids showing mercy in the individual case,(48) thus precluding the appearance of injustice and inconsistency given credence by a history of racial and class discrimination in the criminal justice system. It may be that the criminal justice system must rely on a kind of "prospective mercy;" the legislature anticipates certain conduct, understands the general profile of offenders, and chooses to act mercifully toward the whole set of offenders because of comparative justice issues. In choosing to be overinclusive, some offenders will be treated mercifully even though they exhibit no traits and can present no circumstances that otherwise would stimulate the punisher to be merciful. A strategy for mercy attempts to create a political climate in which alternatives to incarceration may be explored. The practical details become relevant only after legislatures, engaging in mercy, decide to forego the full measure of punishment.

One context into which the infusion of mercy into criminal law policymaking may result in a more humane system, while retaining public support, is in the area of the use of proscribed drugs. This Article considers numerous factors, particularly utilitarian concerns regarding deterrence of future drug crimes, the widespread experimentation with drugs by the general population and the existence of treatment programs for those who can afford it, the hopelessness and inhumanity of treating drug addicts within the prison environment, and the fact that drug crimes olden have no immediate...

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