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Royal Institute of Philosophy

The Quiddity of MercyAuthor(s): Nigel WalkerSource: Philosophy, Vol. 70, No. 271 (Jan., 1995), pp. 27-37Published by: Cambridge University Press on behalf of Royal Institute of PhilosophyStable URL: http://www.jstor.org/stable/3751584 .

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The Quiddityof MercyNIGEL WALKER

Anatomists of criminal justice systems usually ignore the tinyorgan called 'mercy' or 'clemency'. Its name and shape may varyfrom one body politic to another, but its nature and function areuninterestingly obvious. It merely allows benign interferencewhen the programming of the system seems to be having unac-ceptable effects in special cases. As the other organs of the systemevolve they tend to take over this function: appellate courts are anexample. Like the human appendix, mercy may become vestigial.Some penologists and philosophers have welcomed that; but it isopen to question whether it is an altogether healthy development.Theology is outside the scope of this article; but it is worth not-ing that divine mercy was a worrying notion for mediaeval theolo-gians, notably Anselm and Aquinas. Could God be both just andmerciful to sinners? 'God acts mercifully' wrote Aquinas 'not bygoing against his justice but by doing something more than justice;thus a man who pays another two hundred pieces of money thoughowing only one hundred does nothing unjust ...': an unconvincinganalogy.1 This article, however, is about penal mercy; and it wasjurists of the Enlightenment who questioned the need for it.Beccaria argued that it is the penal code itself and not its agentswhich should be lenient. If the code were perfect mercy would beunnecessary. Filangieri, the Sicilian nobleman, was blunter: if apardon is just the law is wrong, but if the law is not wrong a pardonis.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 somesinners, why not to all whose sins are similar? Inconsistency wasnot what worried Beccaria. Utilitarians, after all, need to worryabout inconsistency only if it reduces the acceptability of the crimi-nal justice system to a damaging extent. But it troubles latter-dayretributivists.The credit for recognizing that there is a jurisprudential prob-

Summa Theologiae (1270) Part I, Q.21, Art. 3., which also givesAnselm's similar but vaguer answer.2 Dei Delitti e delle Pene (1761). I owe the information about Filangierito to Leslie Sebba's 'Clemency in Perspective' in Criminology inPerspective, S. Landau and L. Sebba (eds) (Lexington, Massachusetts:Lexington Books, 1977).Philosophy 70 1995 27

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lem belongs to Alwynne Smart, it seems. Certainly her article inPhilosophy3 expressed surprise at the way in which theories of pun-ishment had ignored it. She pointed out that using the word'mercy' so as to include mitigation, proportionality and so forthdistracts us from its genuine and more interesting sense. A sen-tencer who did not take such things into account could be criti-cized as 'unjust', whereas genuine mercy is 'deciding not to inflictwhat is agreed to be the just penalty, all things considered'. By thesame token it is justice, not mercy, in her view, to deal lenientlywith an offender whose offence has already caused him suffering:her example is a motorist whose culpable driving has killed hisown child. (This is, I believe, what Continental jurists have inmind when using the phrase poena naturalis: 'nature's punish-ment'.)She went on to specify conditions under which mercy could besaid to be 'unjustified': if it causes the suffering of an innocentperson, is detrimental to the offender's welfare, harms the authori-ty of the law, or if it is clear that the offender is not repentant ornot likely to reform. Not everyone would agree about some ofthese conditions, for example the last. There is a utilitarian flavourabout some of them; and Smart is, at least in this article, a retribu-tivist. However that may be, mercy, in her view, must do moregood than harm before it is justifiable. I am not sure what shewould have said about situations in which prisoners are released inorder to save the lives of hostages. Although the motivation wouldbe altruistic she might have argued that it would 'harm the author-ity of the law'. But she does not really discuss mercy motivated byexpediency, or by corrupt considerations such as bribery or politi-cal 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 simi-lar cases. If Offender A and Offender B are morally indistinguish-able, showing mercy to only one of them is unfair to the other.Inconsistency always worries retributivists, and we shall see laterto what lengths the English Court of Appeal has sometimes gonein efforts to avoid it.She devoted quite a lot of time to what she saw at first as a pos-sible candidate for the status of 'genuine mercy': leniency motivat-3 A. Smart, "Mercy' in Philosophy (1968) 43, 345-359. Philip Bean'sPunishment (Oxford: Martin Robertson, 1981) follows Smart's line, butnot very carefully (he thinks, for example that she regards "staleness' as areason for mercy, which she doesn't). He seems unaware of ClaudiaCard's objection in her article "On Mercy' in PhilosophicalReview (1972)81, 182-207, and of the underlying problem.28

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ed by 'staleness'. If an offender is not brought to book until manyyears have passed, during which he has behaved well, he may notbe prosecuted, or if prosecuted may be dealt with lightly. Her con-clusion is that this is justice rather than mercy. She could havepointed out that 'statutes of limitation' figure in most Western-type criminal codes; but instead she dug deeper to find the reasonwhy this is just. 'Since the real offender no longer exists, or fullyexists, we are not in a position to show him mercy . . . There issomething odd about showing mercy to someone who is not anoffender'. I came across the same argument years ago in an articleby Stallybrass4: '. . . the offender may have become a differentmoral being (my emphasis)'. Both authors seem to carry a figure ofspeech too far. It would be more precise, and less dogmatic, toinvoke Fletcher's explanation of excuses.5 Acts committed by mis-take, through necessity or insanity and so on, do not allow us toinfer that the actor's character is disposed to act thus. On this viewit is arguable that staleness is an excuse, and leniency based on it isjustice, not mercy.Her quest for 'genuine mercy', however, had a happy ending.She realized that leniency is sometimes shown to an offenderbecause the just penalty-whether imprisonment or a heavy fine-would entail suffering for innocent dependants. The sentencer'sduty, she thought, is to prevent this. So we are 'justified in beingmerciful . . . only when we are obliged to be by the claims thatother obligations have on us (my emphasis)'. Claudia Card object-ed that mercy is discretionary, not the sort of thing that is obliga-tory. This certainly accords with the traditional notion of mercy,but is dogmatic rather than reasoned. The point will crop up againwhen we come to consider the relationship between mercy andrule-following.

Murphy's objection also appealed to the traditional notion ofmercy. It 'must be based on a compassionate concern for thedefendant's plight (his emphasis)'. Smart might have retorted thatthere can be cases in which society has obligations to the defendanthimself which may override the duty to inflict the just penalty. Hemay, for example, be suffering from a life-threatening and chronicillness such that imprisonment would probably lead to his death.The Italian penal code prohibits (with exceptions) a prison sen-tence in such cases.

4 W. T. Stallybrass, 'A Comparison of the General Principles ofCriminal Law in England with the "Progetto definitivo di uno nuovoCodice Penale" of Alfredo Rocco' in The Modern Approach to CriminalLaw, P. H. Winfield, (ed.) (London: Macmillan, 1945).5 G. Fletcher, Rethinking Criminal Law (Boston: Little Brown, 1978).29

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Murphy himself at first believed that mercy is quite incompati-ble with justice: 'tempering is tampering'. Later in his book hefound a small but perfectly formed role for it. Private individualscan be merciful to each other, for example over debts. If punishingis regarded as the State's right but not its duty, as some modernretributivists hold, a judge-or a head of state-may show mercyIf (and this is a very big "if") it can be shown that such an offi-cial is acting, not merely on his own sentiments, but as a vehiclefor expressing the sentiments of all those who have been victim-ized by the criminal and who, given those sentiments, wish towaive the right that each has that the criminal be punished.

It is not the official who is being forgiving (Murphy's view is thatonly those who have been harmed have the 'locus' for forgiveness):he is merely acting on behalf of forgiving victims.6This certainly restricts mercy to very special cases. There are, itis true, Islamic jurisdictions in which a victim or his relatives candemand that the offender not suffer death. Why do Western crimi-nal justice systems not give them similar rights? Probably because

a. they distinguish more sharply between private actions to rem-edy wrongs and the criminal prosecution of conduct which isassumed not only to harm individuals but also endanger thepeaceful existence of unidentifiable members of society;b. mercy should not depend on mere luck; and an offenderwhose victims are forgiving enough to wish him not to sufferthe full penalty is lucky indeed.

Murphy's solution, too, would confine mercy to situations inwhich all the victims are identifiable and living individuals, thusexcluding homicides, offences which have not actually harmed oralarmed anyone, and offences whose harm is diffused (as in thecase of atmospheric pollution).

Murphy might have said that these exclusions do not worryhim: he is after all not trying to find a large niche for mercy. Yetthere is something fishy at the core of his solution, and Harrison7puts his finger on the fish. Agents of the State cannot properly act6 J. Murphy and J. Hampton Forgiveness and Mercy (CambridgeUniversity Press, 1988). Kathleen Moore's excellent history, Pardons(Oxford University Press, 1989), also relegates mercy to the sphere oftransactions between private individuals, but eschews Murphy's compro-mise: '. . a judge cannot exercise . . . mercy in an official capacity. Butindividuals can ... in their relations with other individuals'.

7 Harrison, R. 'The equality of Mercy' in Jurisprudence: CambridgeStudies H. Gross and R. Harrison (eds) (Oxford University Press, 1992).30

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on behalf of private individuals. The State is supposed to be ratio-nal, impartial and consistent. Its laws should be inflexible, but flex-ibility should be exercised for reasons, without partiality, and onlyin 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 ret-ributivist of the classical kind, who sees the infliction of desert as aduty, but occasionally she treats it as a mere right. 'Mercy may beseen as an attempt on the part of the more fortunate to compensatethe less fortunate for their undeserved suffering, when a signifi-cant part of that suffering is due neither to injustice in the laws norto the fault of the offender himself, by imposing less than thedeserved punishment which they have a right to exact . . .'. LikeMurphy's proposal that is neat but oddly restrictive. It confinesmercy to a special class of case, although one which is more vague-ly 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 notbe obligatory. If so, official mercy for 'the unfortunate' must bediscretionary, and discretion creates the possibility-even a proba-bility-of discrimination and inconsistency. This brings us at lastface to face with Ross Harrison's uncompromising position, whichfinds 'no place for mercy' in the criminal justice system of a prop-erly run state. Such a state's system must operate both impartiallyand rationally. Rationality means that its impartiality must not bemerely whimsical, but based on reasoning and reasoning must leadto similar decisions in similar cases (Anselm, Smart and Murphywould of course agree in their own ways). But that means rule-fol-lowing, and rules 'constrain'. Mercy, however, must be uncon-strained, and so cannot survive in the criminal justice system of arationally impartial state.Card does not explain exactly why mercy 'seems basically some-thing we have no obligation to give'. Since she writes as if thiswere axiomatic she may simply have taken for granted the tradi-tion that the royal prerogative-and its equivalent in the USA-isnot subject to the law. Harrison, on the other hand, argues thepoint. 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 notin statute or regulation, but only in case-law: but it is 'justice' allthe same. And Harrison's axiom is that mercy cannot be merelypart of an enlightened justice, which is why he can find no placefor it.Like most axioms Harrison's can be questioned. Why shouldnot mercy be a useful term for special sorts of leniency, even if

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these are rule-following? After all, even the operation of the royalprerogative of mercy is nowadays rule-following, although subjectto occasional breaches8 and occasional innovatory decisions, whichthen form the basis of new rules. If we are trying to decidewhether mercy is a fictitious animal, or merely an endangeredspecies, we ought to take a look at all the reasons which sometimesprompt sane, incorrupt sentencers (or heads of state or whatever)to exercise leniency. Some have been mentioned already. A fewothers can be found in Sebba's fascinating and wide-ranging sur-vey of different criminal justice systems.9 Sebba himself sharedBeccaria's view that mercy is needed only because of the imperfec-tions of penal codes, and might some day be dispensed with. Hisinterest, however, was in the variety of procedures for exercisingit-executive clemency, parole, amnesty and so forth-rather thanin the variety of reasons. My own list of reasons numbers no lessthan twenty-one. While going through it we can keep in mind thecriteria which have been suggested for distinguishing mercy, butat the same time suspend judgment about some of them, and espe-cially 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 resultof corruption);d. it must not be so constrained by rules that it can be called'justice'.We can note and immediately dispose of one group of reasons assimply improper:

1. Personal gain, such as a bribe;2. Favouritism, whether friendly, religious, political or ethnic;3. A whim or mood of the moment;4. Superstition: for example 'Christmas sentencing'.Next are reasons which are regarded not as improper but asmerely expedient:

5. Rewarding offenders for co-operation (for example for plead-ing 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 HomeSecretary to recommend the commutation of Bentley's death sentence inthe face of advice from his civil servants which was based on precedent.9 L. Sebba, 'The Pardoning Power: a World Survey' in the Journal ofCriminal Law and Criminology (1977), 68, 83-121.

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offence appeared to be 'out of character'. Staleness, as wehave seen, should probably be regarded as a special exampleof this. Courts have even dealt leniently with a recent offencebecause such a long time had elapsed since the offender's lastprevious offence;14. Refraining from carrying out a sentence of a kind whosefuture is in doubt, as Home Secretaries used to recommendwhen Parliament was debating the death penalty. And whenan offence ceases to be an offence, or ceases to be punishablewith imprisonment, prisoners serving sentences for it are usu-ally released;15. Taking account of the anxiety suffered by an offender whosesentence seems likely to be increased on appeal, as the EnglishCourt of Appeal does when dealing with sentences referred toit by the Attorney General.

A third group of reasons can be categorized as 'borderline justice':16. Reducing the 'just' sentence because the offender has servedwhat seems an excessive sentence for an earlier offence (as theCourt of Appeal recommended in Benstead (1979) 1 Cr. App.

Rep. (S) 32);17. Reducing the just sentence because an equally guilty accom-plice has been sentenced more leniently in error (as the Courtof Appeal did in Reeves (1964) Crim.L.R.67): see also thesimilar case of Bishop (unreported, in Thomas);'18. Reducing the just sentence as a reward for meritorious con-duct unrelated to the offence (as the Court of Appeal did, togive 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 vic-tim or victim's relatives (Murphy's mercy);20. Reducing the just sentence because of the offender's subse-quent remorse.

Although I have called these 'borderline' reasons, they seem to liejust outside the frontier. Unlike reasons 10-15 they are reasons forreducing what has to be described as the 'just' or 'proper' sen-tence. In the case of reasons 10-15 the sentence cannot bedescribed as 'just' or 'proper' if it has not taken them into account.Yet reasons 16-20 cannot be called 'unjust' or 'improper', as rea-sons 1-4 can. They therefore seem to be, prima facie at least, can-didates for the status of 'mercy'.

10 D. A. Thomas, 'Principles of Sentencing in the Court of Appeal(London: Heinemann, 1979).34

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Even more clearly outside the borderline of penal justice is21. Reducing a just sentence because of an obligation whichoverrides the duty (or right) to inflict it: Smart's mercy.Smart's example was the obligation-as she perceived it-toavoid the harm which imprisonment would impose on a pris-oner's dependants. Another example is the humanitarianprinciple: that there are some kinds of penalty which, howev-er 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 byexpediency (like bargaining over hostages). They are not whimsi-cal or random, even if not all sentencers would endorse them.They are not improper-again even if not every sentencer wouldendorse them. But some-perhaps all-are capable of being madethe subject of rules: Harrison's criterion.We might argue that, pace Harrison, rule-following is not neces-sarily 'being just': that not all rules fall within the definition of jus-tice. Due process apart, penal justice seems to consist in doing one'sbest to match two things: the culpability of the particular offenderand the suffering which he will actually experience as the result ofthe penalty. As we have seen, it is possible to regard reasons 16-21as being neither just nor injust, nor improper in the sense that rea-sons 1-8 are improper. A rule might be called 'merciful'.And there are other ways round Harrison's criterion. On thefirst occasion on which, in a given jurisdiction, a lenient decisionnot dictated by that jurisdiction's notion of justice is arrived at, itis unconstrained by rule. In plainer terms, the creation of a prece-dent is unconstrained because the decision-taker was not requiredby consistency to come to his or her decision. Here there seems tobe a limited role for mercy: the creation of new precedents forleniency. Following the precedents would not be mercy (subject toan argument that will be considered in a moment); but creating anew one would be. True, if that were all that could be suggested,the supply of new opportunities for mercy would could hardly beunlimited. As it becomes more difficult to think of acceptable newreasons for leniency mercy would become an endangered species,and would be confined to two situations: the creation of precedentsin 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 isworthwhile to listen for a moment to the English Court of Appeal.

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not be interested in mercy or indeed in any kind of leniency whichgoes beyond Bentham's principle of frugality." In this unsophisti-cated scenario'2 they would punish A less severely than his accom-plice B only if in each case they believe that they were applying theminimum severity needed to achieve whatever is their aim (notbeing retributively minded they need not worry about 'fairness' or'consistency'). Leniency for the sake of leniency would be ruledout. This scenario, however, relies on two assumptions:

(a) that utilitarian sentencers know what sort of sentence willmaximize the effect they want to produce;(b) that they will not be content with anything less than maximi-sation.In real life (a) is by no means always the case. They are often facedwith choices between two or more measures without the means ofknowing which will be the most effective, and are thus free tochose the least severe. This may be no more than the application offrugality in conditions of uncertainty. But there are also situationsin which they can be sure that measure X will be more effectivethan measure Y, but only by a narrow margin (as, for example, adeath sentence is only slightly more effective than life imprison-ment as a preventive measure). When this is so only a utilitarianwho insists on maximizing his utility is obliged to choose the moresevere penalty. But one can have utility as one's aim withoutalways trying to maximize it. Non-maximizing utilitarians can bemerciful.

Is all this any more than a semantic fuss over the taxonomy ofleniency? A little more than that. Criminal justice systems whichdid not allow for kinds of leniency that are discretionary ratherthan completely rule-bound would be outlawing several kinds ofreasoning which even the Court of Appeal considers worth enter-taining.University of Cambridge

1 The principle that punishment should be no more severe than is nec-essary for its purpose: see Ch. XV of Jeremy Bentham's Introduction tothe Principles of Morals and Legislation (London: Payne, 1789).12For examples of unsophisticated scenarios see A. Smart and P. Bean,loc. cit. in n. 3.37