Mercy Is Not Justice. But Equity Is.

A short post to commend a paper by Mary Sigler, Equity Not Mercy (download from SSRN here). As Sigler observes, the vocabulary and concept of "mercy" have come to the fore in the moral and even political discourse surrounding crime and punishment in the United States. Before we get to the place of mercy in this discourse, however, it's important to notice that there are other starting points for criticism of America's current system of criminal justice.

"Everyone" seems to agree that not only are there too many crimes in America (especially when combining state and federal governments) and that the levels of punishment for many of those crimes is disproportionate to the utilitarian values of deterrence or prevention. In other words, too many folks spend too much time in taxpayer-supported prisons to justify the burgeoning cost. Such arguments from efficiency are drawing increasing support from self-proclaimed conservatives who a decade or so ago were championing "law and order" campaigns.

Others on the political Left and even the Right (such as the late Chuck Colson) have advanced moral arguments against the current criminal-industrial complex. Arguments from the Left have tended to focus on ungrounded concerns about human dignity. Humanity or "democratic values" or the like are proffered as counterweights to a system that leads to massive incarceration. The lack of foundation for such values is, however, problematic except as a political trope. (For my extended analysis of the problem of deploying an ungrounded "human dignity" as the foundation for the contemporary human rights movement see Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).)

If not ungrounded, many of the moral arguments decrying crime and punishment in the United States are ad hoc. They often involve appeals to highly contested "first principles" or isolated biblical texts, often taken out of context.

Enter virtue theory of which Equity Not Mercy is an example. (For some of my posts about virtue in law go here, here, and here.) More than simply deploying virtue theory, however, Sigler considers the nature of two relevant virtues, mercy and equity. Why need we distinguish these virtues in our discussions of criminal justice? Here's how she puts the problem:

The term mercy is used broadly to refer to almost any instance of (or basis for) remitting the harshness of punishment. Although unobjectionable as a colloquial matter, this indiscriminate usage is conceptually problematic. The problem is not that “mercy” has a fixed meaning that precludes application to some subset of these cases … Rather, mercy understood in this broad sense distorts at least two concepts that are essential to our legal, moral, and political life. The broad use of the term mercy denies us the conceptual resources to assess the distinctive operation of traditional mercy—an act of grace that cancels or mitigates what is due out of compassion or concern for the recipient. Even more important, broad mercy effectively diminishes the concept of justice, alleviating the pressure it would otherwise exert to redress claims of right.

In other words, a system that defines crimes and ascribes their punishment is--one hopes--aimed toward justice. And mercy, whatever its virtues (pun intended) is about doing less than justice. In yet more other words, we should in the first instance employ the notion of equity when criticizing the application of sometimes draconian criminal penalties. Mercy is a good but it's not one that should characterize how we critique the problems of our current system.

If not mercy, why equity? Again I will let Sigler speak for herself:

Unlike mercy, a freestanding virtue, equity is an instrument of justice. Indeed, according to Aristotle, “it is a kind of justice, and not a distinct state of character.” Against the backdrop of a legal code that is necessarily general in its orientation—providing universal rules to order human affairs—equity focuses on the particulars, fine-tuning the law’s application to the messy reality of individual cases. In this way, “the law takes account of the majority of cases,” but equity promotes true justice “in so far as law is defective on account of its generality.” Reflecting this complexity, the modern criminal law includes opportunities for the exercise of discretion to allow decision makers to do justice within the parameters of the rule of law.

(For my observations about the nature of equity check out my piece God's Bridle: John Calvin's Application of Natural Law (download here).)

Drawing on resources as varied as Blackstone and Martha Nussbaum, Sigler goes on to contrast mercy and equity and make some applications of equity to our current system. I will let readers explore her work for themselves. I can, however, urge folks who are interested in a good close-to-the-ground analysis of the virtues to do so.