Royal Institute of Philosophy

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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The Quiddity of Mercy

NIGEL WALKER

Anatomists of criminal justice systems usually ignore the tiny organ called 'mercy' or 'clemency'. Its name and shape may vary from one body politic to another, but its nature and function are obvious. It merely allows benign interference uninterestingly when the programming of the system seems to be having unacceptable effects in special cases. As the other organs of the system evolve they tend to take over this function: appellate courts are an example. Like the human appendix, mercy may become vestigial. Some penologists and philosophers have welcomed that; but it is open to question whether it is an altogether healthy development. Theology is outside the scope of this article; but it is worth noting that divine mercy was a worrying notion for mediaeval theologians, notably Anselm and Aquinas. 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; thus a man who pays another two hundred pieces of money though owing only one hundred does nothing unjust ...': an unconvincing analogy.1 This article, however, is about penal mercy; 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. If the code were perfect mercy would be unnecessary. Filangieri, the Sicilian nobleman, was blunter: if a pardon is just the law is wrong, but if the law is not wrong a pardon is.2 It is this point which troubles modern philosophers: Smart, Murphy, Card, Moore and Harrison. Anselm had another good question. If God is merciful to some sinners, why not to all whose sins are similar? Inconsistency was not what worried Beccaria. Utilitarians, after all, need to worry about inconsistency only if it reduces the acceptability of the criminal justice system to a damaging extent. But it troubles latter-day retributivists. The credit for recognizing that there is a jurisprudential probSumma Theologiae (1270) Part I, Q.21, Art. 3., which also gives Anselm's similar but vaguer answer. 2 Dei Delitti e delle Pene (1761). I owe the information about Filangieri to to Leslie Sebba's 'Clemency in Perspective' in Criminology in Perspective, S. Landau and L. Sebba (eds) (Lexington, Massachusetts: Lexington Books, 1977). Philosophy 70 1995 27

Nigel Walker

lem belongs to Alwynne Smart, it seems. Certainly her article in Philosophy3 expressed surprise at the way in which theories of punishment had ignored it. She pointed out that using the word 'mercy' so as to include mitigation, proportionality and so forth distracts us from its genuine and more interesting sense. 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, all things considered'. By the same token it is justice, not mercy, in her view, 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. (This is, I believe, what Continental jurists have in mind when using the phrase poena naturalis: 'nature's punishment'.) She went on to specify conditions under which mercy could be said to be 'unjustified': if it causes the suffering of an innocent person, is detrimental to the offender's welfare, harms the authority of the law, or if it is clear that the offender is not repentant or not likely to reform. Not everyone would agree about some of these conditions, for example the last. There is a utilitarian flavour about some of them; and Smart is, at least in this article, a retributivist. However that may be, mercy, in her view, must do more good than harm before it is justifiable. I am not sure what she would have said about situations in which prisoners are released in order to save the lives of hostages. Although the motivation would be altruistic she might have argued that it would 'harm the authority of the law'. But she does not really discuss mercy motivated by expediency, or by corrupt considerations such as bribery or political advantage: she was writing before Nixon's pardon. She saw the force, however, of Anselm's second point. Individual acts of mercy may discriminate unfairly between similar cases. If Offender A and Offender B are morally indistinguishable, showing mercy to only one of them is unfair to the other. Inconsistency always worries retributivists, and we shall see later to what lengths the English Court of Appeal has sometimes gone in efforts to avoid it. 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. Smart, "Mercy' in Philosophy (1968) 43, 345-359. Philip Bean's Punishment (Oxford: Martin Robertson, 1981) follows Smart's line, but not very carefully (he thinks, for example that she regards "staleness' as a reason for mercy, which she doesn't). He seems unaware of Claudia Card's objection in her article "On Mercy' in Philosophical Review (1972) 81, 182-207, and of the underlying problem. 28

The Quiddity of Mercy

ed by 'staleness'. If an offender is not brought to book until many years have passed, during which he has behaved well, he may not be prosecuted, or if prosecuted may be dealt with lightly. Her conclusion is that this is justice rather than mercy. 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. 'Since the real offender no longer exists, or fully exists, we are not in a position to show him mercy . . . There is something odd about showing mercy to someone who is not an offender'. I came across the same argument years ago in an article by Stallybrass4: '. . . the offender may have become a different moral being (my emphasis)'. Both authors seem to carry a figure of speech too far. It would be more precise, and less dogmatic, to invoke Fletcher's explanation of excuses.5 Acts committed by mistake, through necessity or insanity and so on, do not allow us to infer that the actor's character is disposed to act thus. On this view it is arguable that staleness is an excuse, and leniency based on it is justice, not mercy. Her quest for 'genuine mercy', however, had a happy ending. 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. The sentencer's duty, she thought, is to prevent this. So we are 'justified in being merciful . . . only when we are obliged to be by the claims that other obligations have on us (my emphasis)'. Claudia Card objected that mercy is discretionary, not the sort of thing that is obligatory. This certainly accords with the traditional notion of mercy, but is dogmatic rather than reasoned. The point will crop up again when we come to consider the relationship between mercy and rule-following. Murphy's objection also appealed to the traditional notion of mercy. It 'must be based on a compassionate concern for the defendant's plight (his emphasis)'. 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. He may, for example, be suffering from a life-threatening and chronic illness such that imprisonment would probably lead to his death. The Italian penal code prohibits (with exceptions) a prison sentence in such cases. 4 W. T. Stallybrass, '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, P. H. Winfield, (ed.) (London: Macmillan, 1945). 5 G. Fletcher, Rethinking Criminal Law (Boston: Little Brown, 1978). 29

Nigel

Walker

Murphy himself at first believed that mercy is quite incompatible with justice: 'tempering is tampering'. Later in his book he found a small but perfectly formed role for it. Private individuals can be merciful to each other, for example over debts. If punishing is regarded as the State's right but not its duty, as some modern retributivists hold, 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, not merely on his own sentiments, but as a vehicle for expressing the sentiments of all those who have been victimized by the criminal and who, given those sentiments, wish to waive the right that each has that the criminal be punished. 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.6 This certainly restricts mercy to very special cases. There are, it is true, Islamic jurisdictions in which a victim or his relatives can demand that the offender not suffer death. Why do Western criminal justice systems not give them similar rights? Probably because a. 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; b. mercy should not depend on mere luck; and an offender whose victims are forgiving enough to wish him not to suffer the full penalty is lucky indeed. Murphy's solution, too, would confine mercy to situations in which all the victims are identifiable and living individuals, thus excluding homicides, offences which have not actually harmed or alarmed anyone, and offences whose harm is diffused (as in the case of atmospheric pollution). Murphy might have said that these exclusions do not worry him: he is after all not trying to find a large niche for mercy. Yet there is something fishy at the core of his solution, and Harrison7 puts his finger on the fish. Agents of the State cannot properly act
6

J. Murphy

and J. Hampton

Forgiveness and Mercy (Cambridge

University Press, 1988). Kathleen Moore's excellent history, Pardons (Oxford University Press, 1989), also relegates mercy to the sphere of transactions between private individuals, but eschews Murphy's compromise: '. . a judge cannot exercise . . . mercy in an official capacity. But individuals can ... in their relations with other individuals'.
7 Harrison, R. 'The equality of Mercy' in Jurisprudence: Cambridge Studies H. Gross and R. Harrison (eds) (Oxford University Press, 1992).

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The Quiddity of Mercy

on behalf of private individuals. The State is supposed to be rational, impartial and consistent. Its laws should be inflexible, but flexibility should be exercised for reasons, without partiality, and only in ways that can become precedents: that is, in rule-following ways. A rule, however, must be part of the penal law, part of 'justice'. Claudia Card, too, had her own solution. She writes as a retributivist of the classical kind, who sees the infliction of desert as a duty, but occasionally she treats it as a mere right. 'Mercy may be seen as an attempt on the part of the more fortunate to compensate the less fortunate for their undeserved suffering, when a significant part of that suffering is due neither to injustice in the laws nor to the fault of the offender himself, by imposing less than the deserved punishment which they have a right to exact . . .'. Like Murphy's proposal that is neat but oddly restrictive. It confines mercy to a special class of case, although one which is more vaguely defined than Murphy's. Offenders who are not 'unfortunate' should not apparently expect mercy. Yet her objections to Smart's solution was that mercy must not be obligatory. If so, official mercy for 'the unfortunate' must be a probadiscretionary, and discretion creates the possibility-even discrimination and inconsistency. This brings us at last bility-of face to face with Ross Harrison's uncompromising position, which finds 'no place for mercy' in the criminal justice system of a properly run state. Such a state's system must operate both impartially and rationally. Rationality means that its impartiality must not be merely whimsical, but based on reasoning and reasoning must lead to similar decisions in similar cases (Anselm, Smart and Murphy would of course agree in their own ways). But that means rule-following, and rules 'constrain'. Mercy, however, must be unconstrained, and so cannot survive in the criminal justice system of a rationally impartial state. Card does not explain exactly why mercy 'seems basically something we have no obligation to give'. 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. Harrison, on the other hand, argues the point. If one is following a rule when coming to a lenient decision, that rule must be part of the penal code. It may be expressed not in statute or regulation, but only in case-law: but it is 'justice' all the same. And Harrison's axiom is that mercy cannot be merely part of an enlightened justice, which is why he can find no place for it. Like most axioms Harrison's can be questioned. Why should not mercy be a useful term for special sorts of leniency, even if 31

Nigel Walker

these are rule-following? After all, even the operation of the royal prerogative of mercy is nowadays rule-following, although subject to occasional breaches8 and occasional innovatory decisions, which then form the basis of new rules. If we are trying to decide whether mercy is a fictitious animal, or merely an endangered species, we ought to take a look at all the reasons which sometimes prompt sane, incorrupt sentencers (or heads of state or whatever) to exercise leniency. Some have been mentioned already. A few others can be found in Sebba's fascinating and wide-ranging survey of different criminal justice systems.9 Sebba himself shared Beccaria's view that mercy is needed only because of the imperfections of penal codes, and might some day be dispensed with. His interest, however, was in the variety of procedures for exercising it-executive than clemency, parole, amnesty and so forth-rather in the variety of reasons. My own list of reasons numbers no less than twenty-one. While going through it we can keep in mind the criteria which have been suggested for distinguishing mercy, but at the same time suspend judgment about some of them, and especially the criterion which concerns rule-following: a. compassion, it has been suggested, must be the main motive, not mere expediency; b. it must not be merely whimsical or random; c. it must not be improper in other ways (for example, the result of corruption); d. it must not be so constrained by rules that it can be called 'justice'. We can note and immediately simply improper: 1. 2. 3. 4. dispose of one group of reasons as

Personal gain, such as a bribe; Favouritism, whether friendly, religious, political or ethnic; A whim or mood of the moment; Superstition: for example 'Christmas sentencing'. are regarded not as improper but as

Next are reasons which merely expedient:

5. Rewarding offenders for co-operation (for example for pleading guilty, or giving evidence against another defendant); 6.Bargaining with hostage-takers; 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. 9 L. Sebba, 'The Pardoning Power: a World Survey' in the Journal of Criminal Law and Criminology(1977), 68, 83-121. 32

The Quiddity of Mercy

7. Economizing in overloaded resources (an English example was the discretion conferred on the Home Secretary by Section 32 of the Criminal Justice Act 1982, allowing him to release prisoners before their due dates in order to relieve overcrowding-a power not so far used); 8. Protecting diplomats (one object of the Vienna Convention of 1961, in order to protect them against harassment or worse). Less easy to categorize are: 9. Amnesties. These usually release whole classes of offenders from imprisonment, and sometimes from death sentences. They may be politically motivated (as in the case of the USA's draft-dodgers after the Vietnam war). In some countries they are a traditional way of celebrating a welcome event (such as a royal marriage in Belgium). They may be a way of sealing a peace with an enemy. They cannot be ascribed to 'justice', even of the most enlightened kind, since they can result in obvious injustices (some draft-dodgers served sentences while others were not even prosecuted; and some prisoners are 'amnestied' earlier in their sentences than others). Nor are amnesties prompted by compassion. Consequently amnesties must be regarded as sometimes expedient, sometimes simply improper. Next we can list reasons which nowadays seems to be dictated by our motions of justice and proportionality, and are therefore not what Smart et al. would call 'genuine mercy': 10. The need to correct, so, far as possible, the effects of a wrongful conviction (usually by a pardon, and sometimes with compensation); 11. Taking account of circumstances connected with the offence which seems to reduce the offender's culpability, sometimes to zero (self-defence, necessity, duress, provocation and so forth); 12. Taking account of circumstances which, 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, or would add too much to what he is already suffering (Bentham's 'sensibility'). Aged or ill offenders are examples; and we should probably include under this heading the young, Card's 'unfortunates', cases of 'nature's and the repatriation of foreign prisoners to punishment', serve their sentences in their own countries; 13. Taking account of 'good character' or at least that the 33

Nigel Walker

offence appeared to be 'out of character'. Staleness, as we have seen, should probably be regarded as a special example of this. Courts have even dealt leniently with a recent offence because such a long time had elapsed since the offender's last previous offence; 14. Refraining from carrying out a sentence of a kind whose future is in doubt, as Home Secretaries used to recommend when Parliament was debating the death penalty. And when an offence ceases to be an offence, or ceases to be punishable with imprisonment, prisoners serving sentences for it are usually released; 15. Taking account of the anxiety suffered by an offender whose sentence seems likely to be increased on appeal, as the English Court of Appeal does when dealing with sentences referred to it by the Attorney General. A third group of reasons can be categorized as 'borderline justice': 16. 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. App. Rep. (S) 32); 17. 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.L.R.67): see also the similar case of Bishop (unreported, in Thomas);' 18. Reducing the just sentence as a reward for meritorious conduct unrelated to the offence (as the Court of Appeal did, to give only one example, in the case of Keightley (1972) Crim. L. R. 72 because he had saved a child from drowning); 19. Reducing the just sentence in response to a plea from a victim or victim's relatives (Murphy's mercy); 20. Reducing the just sentence because of the offender's subsequent remorse. Although I have called these 'borderline' reasons, they seem to lie just outside the frontier. Unlike reasons 10-15 they are reasons for reducing what has to be described as the 'just' or 'proper' sentence. In the case of reasons 10-15 the sentence cannot be described as 'just' or 'proper' if it has not taken them into account. Yet reasons 16-20 cannot be called 'unjust' or 'improper', as reasons 1-4 can. They therefore seem to be, prima facie at least, candidates for the status of 'mercy'. A. Thomas, 'Principles of Sentencing in the Court of Appeal (London: Heinemann, 1979). 34
10 D.

The Quiddity of Mercy

Even more clearly outside the borderline of penal justice is 21. Reducing a just sentence because of an obligation which overrides the duty (or right) to inflict it: Smart's mercy. Smart's example was the obligation-as she perceived it-to avoid the harm which imprisonment would impose on a prisoner's dependants. Another example is the humanitarian principle: that there are some kinds of penalty which, however richly deserved or efficacious, should never be intentionally inflicted on a human being. Conventions which outlaw 'cruel' or 'degrading' punishments are expressing this principle. We seem now to have six reasons (16-21) which satisfy criteria (a), (b) and (c). They are compassionate, not merely prompted by expediency (like bargaining over hostages). They are not whimsical or random, even if not all sentencers would endorse them. They are not improper-again even if not every sentencer would endorse them. But some-perhaps all-are capable of being made the subject of rules: Harrison's criterion. We might argue that, pace Harrison, rule-following is not necessarily 'being just': that not all rules fall within the definition of justice. Due process apart, 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. As we have seen, it is possible to regard reasons 16-21 as being neither just nor injust, nor improper in the sense that reasons 1-8 are improper. A rule might be called 'merciful'. And there are other ways round Harrison's criterion. On the first occasion on which, in a given jurisdiction, a lenient decision not dictated by that jurisdiction's notion of justice is arrived at, it is unconstrained by rule. In plainer terms, the creation of a precedent is unconstrained because the decision-taker was not required by consistency to come to his or her decision. Here there seems to be a limited role for mercy: the creation of new precedents for leniency. Following the precedents would not be mercy (subject to an argument that will be considered in a moment); but creating a new one would be. True, if that were all that could be suggested, the supply of new opportunities for mercy would could hardly be unlimited. As it becomes more difficult to think of acceptable new reasons for leniency mercy would become an endangered species, and would be confined to two situations: the creation of precedents in jurisdictions which have lagged behind others in this respect, and the revival of precedents which have been neglected. Yet there may be another loophole in Harrison's hurdle. It is worthwhile to listen for a moment to the English Court of Appeal.
35

Nigel Walker

It used to hold that its sentencing decisions were not binding precedents: '. . . indeed they could not be, since the circumstances of the offence and the offender present an almost infinite variety from case to case' (de Havilland (1983) 5 Cr.App.Rep. (S) at 114). The court has modified this view since it began to designate selected decisions as 'guide-line cases'. Even so it still argues that there are classes of cases in which the circumstances 'vary so infinitely' that it would be 'difficult, if not impossible' to lay down any guide-lines (Lindsay (1993) 14 Cr.App.Rep. (S) at 242). This is interesting. The court can hardly mean that its reasons for leniency vary infinitely. 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, that is, which tell us when a substantive rule is to be regarded as applicable. 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. By the same token constitutive rules can be formulated for the circumstances in which some of the twenty-one reasons for leniency apply. This is obviously not difficult in the case of reasons 6, 7, 8, 10, 11, 14, 16, 17, 19, 21. Equally obviously it is 'difficult, if not impossible' in the case of reasons 12, 13, 15, 18, 20. 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. They are not difficult to formulate when the choice must be between penalties which differ in kind. When the innocent would suffer too much if the offender were imprisoned, then imprisonment is ruled out. But if it is a matter of degree difficulty arises. It has been said that a plea of guilty will earn a reduction of about a quarter in the length of a prison sentence. But what should the reduction be for saving a drowning child? Or for remorse or anxiety? The Court of Appeal has a point. Not all acts of leniency can be determined by rules. If so, mercy can have two roles: the creation (or revival) of precedents for leniency, and the discretionary decisions needed when satisfactory constitutive rules cannot be formulated. The views discussed so far have taken for granted a retributive view of punishment. It is almost always assumed (I can think of no heads of state-would exceptions) that utilitarian sentencers-or 36

The Quiddity of Mercy

not be interested in mercy or indeed in any kind of leniency which goes beyond Bentham's principle of frugality." 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'). Leniency for the sake of leniency would be ruled out. This scenario, however, relies on two assumptions: (a) that utilitarian sentencers know what sort of sentence will maximize the effect they want to produce; (b) that they will not be content with anything less than maximisation. In real life (a) is by no means always the case. They are often faced with choices between two or more measures without the means of knowing which will be the most effective, and are thus free to chose the least severe. This may be no more than the application of frugality in conditions of uncertainty. But there are also situations in which they can be sure that measure X will be more effective than measure Y, but only by a narrow margin (as, for example, a death sentence is only slightly more effective than life imprisonment as a preventive measure). When this is so only a utilitarian who insists on maximizing his utility is obliged to choose the more severe penalty. But one can have utility as one's aim without always trying to maximize it. Non-maximizing utilitarians can be merciful. Is all this any more than a semantic fuss over the taxonomy of leniency? A little more than that. 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. University of Cambridge

1 The principle that punishment should be no more severe than is necessary for its purpose: see Ch. XV of Jeremy Bentham's Introduction to the Principles of Morals and Legislation (London: Payne, 1789). 12 For examples of unsophisticated scenarios see A. Smart and P. Bean, loc. cit. in n. 3. 37