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The Quiddity of Mercy Author(s): Nigel Walker Source: Philosophy, Vol. 70, No. 271 (Jan., 1995), pp. 27-37 Published by: Cambridge University Press on behalf of Royal Institute of Philosophy Stable URL: http://www.jstor.org/stable/3751584 . Accessed: 22/06/2011 15:46
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which also gives Anselm's similar but vaguer answer. and it was jurists of the Enlightenment who questioned the need for it. Beccaria argued that it is the penal code itself and not its agents which should be lenient.21. Art. Anselm had another good question. thus a man who pays another two hundred pieces of money though owing only one hundred does nothing unjust . 1977). Sebba (eds) (Lexington.. Philosophy 70 1995 27 . but if the law is not wrong a pardon is. Landau and L. after all. is about penal mercy.1 This article. The credit for recognizing that there is a jurisprudential probSumma Theologiae (1270) Part I. 3. Q. but its nature and function are obvious.2 It is this point which troubles modern philosophers: Smart.The Quiddity of Mercy NIGEL WALKER Anatomists of criminal justice systems usually ignore the tiny organ called 'mercy' or 'clemency'.. I owe the information about Filangieri to to Leslie Sebba's 'Clemency in Perspective' in Criminology in Perspective. the Sicilian nobleman. why not to all whose sins are similar? Inconsistency was not what worried Beccaria. Like the human appendix. But it troubles latter-day retributivists. As the other organs of the system evolve they tend to take over this function: appellate courts are an example. notably Anselm and Aquinas. Massachusetts: Lexington Books.': an unconvincing analogy. Its name and shape may vary from one body politic to another. need to worry about inconsistency only if it reduces the acceptability of the criminal justice system to a damaging extent. If God is merciful to some sinners. Filangieri. but it is open to question whether it is an altogether healthy development. mercy may become vestigial. It merely allows benign interference uninterestingly when the programming of the system seems to be having unacceptable effects in special cases. was blunter: if a pardon is just the law is wrong. If the code were perfect mercy would be unnecessary. Moore and Harrison. S. Some penologists and philosophers have welcomed that.. Card. Theology is outside the scope of this article. Murphy. but it is worth noting that divine mercy was a worrying notion for mediaeval theologians. Utilitarians. 2 Dei Delitti e delle Pene (1761). however. Could God be both just and merciful to sinners? 'God acts mercifully' wrote Aquinas 'not by going against his justice but by doing something more than justice.
I believe. it seems. Not everyone would agree about some of these conditions. Smart. and of the underlying problem. By the same token it is justice. for example that she regards "staleness' as a reason for mercy. all things considered'.) She went on to specify conditions under which mercy could be said to be 'unjustified': if it causes the suffering of an innocent person. 345-359. He seems unaware of Claudia Card's objection in her article "On Mercy' in Philosophical Review (1972) 81. showing mercy to only one of them is unfair to the other. which she doesn't). proportionality and so forth distracts us from its genuine and more interesting sense. of Anselm's second point. I am not sure what she would have said about situations in which prisoners are released in order to save the lives of hostages. or by corrupt considerations such as bribery or political advantage: she was writing before Nixon's pardon. and we shall see later to what lengths the English Court of Appeal has sometimes gone in efforts to avoid it. however. 28 . But she does not really discuss mercy motivated by expediency. Inconsistency always worries retributivists. must do more good than harm before it is justifiable. She devoted quite a lot of time to what she saw at first as a possible candidate for the status of 'genuine mercy': leniency motivat3 A. "Mercy' in Philosophy (1968) 43. not mercy. for example the last.Nigel Walker lem belongs to Alwynne Smart. a retributivist. harms the authority of the law. She saw the force. or if it is clear that the offender is not repentant or not likely to reform. (This is. However that may be. She pointed out that using the word 'mercy' so as to include mitigation. and Smart is. in her view. If Offender A and Offender B are morally indistinguishable. 182-207. Although the motivation would be altruistic she might have argued that it would 'harm the authority of the law'. what Continental jurists have in mind when using the phrase poena naturalis: 'nature's punishment'. but not very carefully (he thinks. 1981) follows Smart's line. to deal leniently with an offender whose offence has already caused him suffering: her example is a motorist whose culpable driving has killed his own child. Individual acts of mercy may discriminate unfairly between similar cases. A sentencer who did not take such things into account could be criticized as 'unjust'. whereas genuine mercy is 'deciding not to inflict what is agreed to be the just penalty. in her view. mercy. There is a utilitarian flavour about some of them. Philip Bean's Punishment (Oxford: Martin Robertson. is detrimental to the offender's welfare. Certainly her article in Philosophy3 expressed surprise at the way in which theories of punishment had ignored it. at least in this article.
If an offender is not brought to book until many years have passed. had a happy ending. Winfield. . .5 Acts committed by mistake. Her conclusion is that this is justice rather than mercy. 'A Comparison of the General Principles of Criminal Law in England with the "Progetto definitivo di uno nuovo Codice Penale" of Alfredo Rocco' in The Modern Approach to Criminal Law. but is dogmatic rather than reasoned. or fully exists.) (London: Macmillan. She realized that leniency is sometimes shown to an offender because the just penalty-whether imprisonment or a heavy finewould entail suffering for innocent dependants. Smart might have retorted that there can be cases in which society has obligations to the defendant himself which may override the duty to inflict the just penalty. It 'must be based on a compassionate concern for the defendant's plight (his emphasis)'. . however. 29 . not the sort of thing that is obligatory.The Quiddity of Mercy ed by 'staleness'. I came across the same argument years ago in an article by Stallybrass4: '. she thought. to invoke Fletcher's explanation of excuses. There is something odd about showing mercy to someone who is not an offender'. . through necessity or insanity and so on. or if prosecuted may be dealt with lightly. not mercy. . The Italian penal code prohibits (with exceptions) a prison sentence in such cases. 5 G. Stallybrass. is to prevent this. 'Since the real offender no longer exists. the offender may have become a different moral being (my emphasis)'. He may. P. and leniency based on it is justice. Murphy's objection also appealed to the traditional notion of mercy. 4 W. It would be more precise. he may not be prosecuted. we are not in a position to show him mercy . Both authors seem to carry a figure of speech too far. for example. Rethinking Criminal Law (Boston: Little Brown. So we are 'justified in being merciful . during which he has behaved well. 1978). and less dogmatic. do not allow us to infer that the actor's character is disposed to act thus. (ed. Fletcher. . H. T. The point will crop up again when we come to consider the relationship between mercy and rule-following. Claudia Card objected that mercy is discretionary. She could have pointed out that 'statutes of limitation' figure in most Westerntype criminal codes. but instead she dug deeper to find the reason why this is just. Her quest for 'genuine mercy'. only when we are obliged to be by the claims that other obligations have on us (my emphasis)'. 1945). On this view it is arguable that staleness is an excuse. The sentencer's duty. This certainly accords with the traditional notion of mercy. be suffering from a life-threatening and chronic illness such that imprisonment would probably lead to his death.
given those sentiments. 30 . Murphy and J. but as a vehicle for expressing the sentiments of all those who have been victimized by the criminal and who. 1989). Yet there is something fishy at the core of his solution. would confine mercy to situations in which all the victims are identifiable and living individuals. it is true. and Harrison7 puts his finger on the fish. Agents of the State cannot properly act 6 J. as some modern retributivists hold. Hampton Forgiveness and Mercy (Cambridge University Press. a judge cannot exercise . but eschews Murphy's compromise: '. not merely on his own sentiments. . and an offender whose victims are forgiving enough to wish him not to suffer the full penalty is lucky indeed. in their relations with other individuals'. 1988). and offences whose harm is diffused (as in the case of atmospheric pollution). too. But individuals can . Private individuals can be merciful to each other. Gross and R. Murphy's solution. they distinguish more sharply between private actions to remedy wrongs and the criminal prosecution of conduct which is assumed not only to harm individuals but also endanger the peaceful existence of unidentifiable members of society. a judge-or a head of state-may show mercy If (and this is a very big "if") it can be shown that such an official is acting. 1992). mercy in an official capacity. also relegates mercy to the sphere of transactions between private individuals. If punishing is regarded as the State's right but not its duty. . 7 Harrison. wish to waive the right that each has that the criminal be punished. Why do Western criminal justice systems not give them similar rights? Probably because a. R.. Kathleen Moore's excellent history.. Harrison (eds) (Oxford University Press. offences which have not actually harmed or alarmed anyone. mercy should not depend on mere luck. . thus excluding homicides. Murphy might have said that these exclusions do not worry him: he is after all not trying to find a large niche for mercy. There are. b. Islamic jurisdictions in which a victim or his relatives can demand that the offender not suffer death. for example over debts. Later in his book he found a small but perfectly formed role for it.6 This certainly restricts mercy to very special cases. 'The equality of Mercy' in Jurisprudence: Cambridge Studies H.Nigel Walker Murphy himself at first believed that mercy is quite incompatible with justice: 'tempering is tampering'. It is not the official who is being forgiving (Murphy's view is that only those who have been harmed have the 'locus' for forgiveness): he is merely acting on behalf of forgiving victims. Pardons (Oxford University Press.
which finds 'no place for mercy' in the criminal justice system of a properly run state. on the other hand. and so cannot survive in the criminal justice system of a rationally impartial state. although one which is more vaguely defined than Murphy's. Claudia Card. that rule must be part of the penal code. It confines mercy to a special class of case. Yet her objections to Smart's solution was that mercy must not be obligatory. but flexibility should be exercised for reasons. too. . must be part of the penal law. Such a state's system must operate both impartially and rationally. part of 'justice'.The Quiddity of Mercy on behalf of private individuals. and only in ways that can become precedents: that is. But that means rule-following. . Since she writes as if this were axiomatic she may simply have taken for granted the tradiits equivalent in the USA-is tion that the royal prerogative-and not subject to the law. argues the point. A rule. Rationality means that its impartiality must not be merely whimsical. but only in case-law: but it is 'justice' all the same. Smart and Murphy would of course agree in their own ways). This brings us at last bility-of face to face with Ross Harrison's uncompromising position. And Harrison's axiom is that mercy cannot be merely part of an enlightened justice. The State is supposed to be rational. official mercy for 'the unfortunate' must be a probadiscretionary. Its laws should be inflexible. who sees the infliction of desert as a duty. when a significant part of that suffering is due neither to injustice in the laws nor to the fault of the offender himself. and rules 'constrain'. even if 31 . without partiality. however. by imposing less than the deserved punishment which they have a right to exact . It may be expressed not in statute or regulation.'. but based on reasoning and reasoning must lead to similar decisions in similar cases (Anselm. Like Murphy's proposal that is neat but oddly restrictive. in rule-following ways. She writes as a retributivist of the classical kind. Like most axioms Harrison's can be questioned. impartial and consistent. Why should not mercy be a useful term for special sorts of leniency. which is why he can find no place for it. had her own solution. but occasionally she treats it as a mere right. and discretion creates the possibility-even discrimination and inconsistency. must be unconstrained. Harrison. however. If one is following a rule when coming to a lenient decision. If so. Mercy. Offenders who are not 'unfortunate' should not apparently expect mercy. 'Mercy may be seen as an attempt on the part of the more fortunate to compensate the less fortunate for their undeserved suffering. Card does not explain exactly why mercy 'seems basically something we have no obligation to give'.
b. If we are trying to decide whether mercy is a fictitious animal.9 Sebba himself shared Beccaria's view that mercy is needed only because of the imperfections of penal codes. it must not be merely whimsical or random. and might some day be dispensed with. dispose of one group of reasons as Personal gain. While going through it we can keep in mind the criteria which have been suggested for distinguishing mercy. was in the variety of procedures for exercising it-executive than clemency. even the operation of the royal prerogative of mercy is nowadays rule-following. My own list of reasons numbers no less than twenty-one. compassion. 83-121. and especially the criterion which concerns rule-following: a. religious. Superstition: for example 'Christmas sentencing'. 9 L. must be the main motive. 6. 68. amnesty and so forth-rather in the variety of reasons. parole. Some have been mentioned already. Rewarding offenders for co-operation (for example for pleading guilty. the result of corruption). Favouritism. His interest.Bargaining with hostage-takers. 'The Pardoning Power: a World Survey' in the Journal of Criminal Law and Criminology(1977). incorrupt sentencers (or heads of state or whatever) to exercise leniency. but at the same time suspend judgment about some of them. 4. A few others can be found in Sebba's fascinating and wide-ranging survey of different criminal justice systems. or giving evidence against another defendant). it has been suggested. We can note and immediately simply improper: 1. d. it must not be improper in other ways (for example. are regarded not as improper but as Next are reasons which merely expedient: 5. A whim or mood of the moment. 8 A notable example of a breach was the refusal of the then Home Secretary to recommend the commutation of Bentley's death sentence in the face of advice from his civil servants which was based on precedent. we ought to take a look at all the reasons which sometimes prompt sane. c. 32 . such as a bribe. however. political or ethnic. Sebba. it must not be so constrained by rules that it can be called 'justice'. not mere expediency. or merely an endangered species. whether friendly. which then form the basis of new rules. 2. 3.Nigel Walker these are rule-following? After all. although subject to occasional breaches8 and occasional innovatory decisions.
and sometimes with compensation). Amnesties. in order to protect them against harassment or worse). the effects of a wrongful conviction (usually by a pardon. Card's 'unfortunates'. Protecting diplomats (one object of the Vienna Convention of 1961. They may be a way of sealing a peace with an enemy. and sometimes from death sentences. 11. Less easy to categorize are: 9. sometimes to zero (self-defence. cases of 'nature's and the repatriation of foreign prisoners to punishment'. Nor are amnesties prompted by compassion. and are therefore not what Smart et al. Consequently amnesties must be regarded as sometimes expedient. The need to correct. even of the most enlightened kind. These usually release whole classes of offenders from imprisonment. and some prisoners are 'amnestied' earlier in their sentences than others). though not connected with the offence. mean that the usual penalty would inflict more suffering on the offender in question than on most other offenders. far as possible. provocation and so forth). 13. or would add too much to what he is already suffering (Bentham's 'sensibility'). 12. In some countries they are a traditional way of celebrating a welcome event (such as a royal marriage in Belgium). Taking account of circumstances connected with the offence which seems to reduce the offender's culpability. allowing him to release prisoners before their due dates in order to relieve overcrowding-a power not so far used). serve their sentences in their own countries. necessity. sometimes simply improper. Economizing in overloaded resources (an English example was the discretion conferred on the Home Secretary by Section 32 of the Criminal Justice Act 1982. They may be politically motivated (as in the case of the USA's draft-dodgers after the Vietnam war). and we should probably include under this heading the young. duress.The Quiddity of Mercy 7. Next we can list reasons which nowadays seems to be dictated by our motions of justice and proportionality. 8. since they can result in obvious injustices (some draft-dodgers served sentences while others were not even prosecuted. Taking account of circumstances which. would call 'genuine mercy': 10. Aged or ill offenders are examples. so. Taking account of 'good character' or at least that the 33 . They cannot be ascribed to 'justice'.
15. Reducing the just sentence because an equally guilty accomplice has been sentenced more leniently in error (as the Court of Appeal did in Reeves (1964) Crim. in the case of Keightley (1972) Crim. Reducing the just sentence as a reward for meritorious conduct unrelated to the offence (as the Court of Appeal did. Reducing the just sentence because of the offender's subsequent remorse. A. 'Principles of Sentencing in the Court of Appeal (London: Heinemann. . 19. Staleness. as reasons 1-4 can. Reducing the just sentence in response to a plea from a victim or victim's relatives (Murphy's mercy). And when an offence ceases to be an offence. (S) 32). R. Unlike reasons 10-15 they are reasons for reducing what has to be described as the 'just' or 'proper' sentence. Although I have called these 'borderline' reasons. should probably be regarded as a special example of this. as Home Secretaries used to recommend when Parliament was debating the death penalty. L. to give only one example.'° 18. or ceases to be punishable with imprisonment. 34 10 D. 72 because he had saved a child from drowning).R. In the case of reasons 10-15 the sentence cannot be described as 'just' or 'proper' if it has not taken them into account. Taking account of the anxiety suffered by an offender whose sentence seems likely to be increased on appeal. 1979). prima facie at least. A third group of reasons can be categorized as 'borderline justice': 16.67): see also the similar case of Bishop (unreported. 14. They therefore seem to be. Reducing the 'just' sentence because the offender has served what seems an excessive sentence for an earlier offence (as the Court of Appeal recommended in Benstead (1979) 1 Cr. Rep. as the English Court of Appeal does when dealing with sentences referred to it by the Attorney General.L. as we have seen. in Thomas). Refraining from carrying out a sentence of a kind whose future is in doubt.Nigel Walker offence appeared to be 'out of character'. Thomas. 20. they seem to lie just outside the frontier. App. prisoners serving sentences for it are usually released. Yet reasons 16-20 cannot be called 'unjust' or 'improper'. Courts have even dealt leniently with a recent offence because such a long time had elapsed since the offender's last previous offence. 17. candidates for the status of 'mercy'.
As it becomes more difficult to think of acceptable new reasons for leniency mercy would become an endangered species. (b) and (c). a lenient decision not dictated by that jurisdiction's notion of justice is arrived at. Yet there may be another loophole in Harrison's hurdle. penal justice seems to consist in doing one's best to match two things: the culpability of the particular offender and the suffering which he will actually experience as the result of the penalty. We seem now to have six reasons (16-21) which satisfy criteria (a). True. pace Harrison. As we have seen. A rule might be called 'merciful'. and would be confined to two situations: the creation of precedents in jurisdictions which have lagged behind others in this respect. however richly deserved or efficacious. In plainer terms. They are compassionate. Smart's example was the obligation-as she perceived it-to avoid the harm which imprisonment would impose on a prisoner's dependants. And there are other ways round Harrison's criterion. But some-perhaps all-are capable of being made the subject of rules: Harrison's criterion. in a given jurisdiction. and the revival of precedents which have been neglected. Following the precedents would not be mercy (subject to an argument that will be considered in a moment). They are not improper-again even if not every sentencer would endorse them. rule-following is not necessarily 'being just': that not all rules fall within the definition of justice. the creation of a precedent is unconstrained because the decision-taker was not required by consistency to come to his or her decision. Due process apart. if that were all that could be suggested. Another example is the humanitarian principle: that there are some kinds of penalty which. It is worthwhile to listen for a moment to the English Court of Appeal. even if not all sentencers would endorse them.The Quiddity of Mercy Even more clearly outside the borderline of penal justice is 21. They are not whimsical or random. it is possible to regard reasons 16-21 as being neither just nor injust. On the first occasion on which. the supply of new opportunities for mercy would could hardly be unlimited. nor improper in the sense that reasons 1-8 are improper. Conventions which outlaw 'cruel' or 'degrading' punishments are expressing this principle. it is unconstrained by rule. Reducing a just sentence because of an obligation which overrides the duty (or right) to inflict it: Smart's mercy. We might argue that. should never be intentionally inflicted on a human being. 35 . Here there seems to be a limited role for mercy: the creation of new precedents for leniency. not merely prompted by expediency (like bargaining over hostages). but creating a new one would be.
It is almost always assumed (I can think of no heads of state-would exceptions) that utilitarian sentencers-or 36 . and the discretionary decisions needed when satisfactory constitutive rules cannot be formulated. It has been said that a plea of guilty will earn a reduction of about a quarter in the length of a prison sentence.App. Not all acts of leniency can be determined by rules. that is. (S) at 114). What it must mean is that in some classes of case it finds it 'difficult if not impossible' to formulate what are called 'constitutive rules': rules. 17. since the circumstances of the offence and the offender present an almost infinite variety from case to case' (de Havilland (1983) 5 Cr. 7. 19. But if it is a matter of degree difficulty arises.Rep. The views discussed so far have taken for granted a retributive view of punishment. (S) at 242). mercy can have two roles: the creation (or revival) of precedents for leniency. if not impossible' to lay down any guide-lines (Lindsay (1993) 14 Cr. 15. If so. indeed they could not be. The court can hardly mean that its reasons for leniency vary infinitely. 16. which tell us when a substantive rule is to be regarded as applicable. By the same token constitutive rules can be formulated for the circumstances in which some of the twenty-one reasons for leniency apply. When the innocent would suffer too much if the offender were imprisoned.Nigel Walker It used to hold that its sentencing decisions were not binding precedents: '. 21.App. Even so it still argues that there are classes of cases in which the circumstances 'vary so infinitely' that it would be 'difficult. 13. This is obviously not difficult in the case of reasons 6. How old or ill must the offender be (12)? How good must his character be (13)? How anxious must he be (15)? How meritorious must his action have been (18)? How does one measure remorse (20)? How great must the suffering of the innocent be (21)? Constitutive rules also seem needed in some cases to define the amount of leniency which is appropriate. This is interesting. 11. 14. The court has modified this view since it began to designate selected decisions as 'guide-line cases'. if not impossible' in the case of reasons 12. 20. then imprisonment is ruled out. They define the situations in which the substantive rule is meant to operate: examples are the rules defining stalemates in chess or fouls in football. They may also define the degree of whatever variable is relevant: for example the amount of alcohol in the blood that constitutes drunken driving.Rep. They are not difficult to formulate when the choice must be between penalties which differ in kind. But what should the reduction be for saving a drowning child? Or for remorse or anxiety? The Court of Appeal has a point. 10. . 18. Equally obviously it is 'difficult. 8. .
but only by a narrow margin (as. 37 . Criminal justice systems which did not allow for kinds of leniency that are discretionary rather than completely rule-bound would be outlawing several kinds of reasoning which even the Court of Appeal considers worth entertaining. But there are also situations in which they can be sure that measure X will be more effective than measure Y. This may be no more than the application of frugality in conditions of uncertainty. 12 For examples of unsophisticated scenarios see A. (b) that they will not be content with anything less than maximisation. Is all this any more than a semantic fuss over the taxonomy of leniency? A little more than that. cit. Bean. Smart and P. XV of Jeremy Bentham's Introduction to the Principles of Morals and Legislation (London: Payne. University of Cambridge 1 The principle that punishment should be no more severe than is necessary for its purpose: see Ch. Leniency for the sake of leniency would be ruled out. But one can have utility as one's aim without always trying to maximize it. When this is so only a utilitarian who insists on maximizing his utility is obliged to choose the more severe penalty. a death sentence is only slightly more effective than life imprisonment as a preventive measure).The Quiddity of Mercy not be interested in mercy or indeed in any kind of leniency which goes beyond Bentham's principle of frugality. and are thus free to chose the least severe. in n. This scenario. 3. however." In this unsophisticated scenario'2 they would punish A less severely than his accomplice B only if in each case they believe that they were applying the minimum severity needed to achieve whatever is their aim (not being retributively minded they need not worry about 'fairness' or 'consistency'). loc. They are often faced with choices between two or more measures without the means of knowing which will be the most effective. relies on two assumptions: (a) that utilitarian sentencers know what sort of sentence will maximize the effect they want to produce. 1789). for example. In real life (a) is by no means always the case. Non-maximizing utilitarians can be merciful.