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Mercy and criminal justice

ProQuest Dissertations and Theses, 2011
Dissertation
Author: Kristen Bell
Abstract:
This dissertation analyzes criminal justice from the perspective of non-ideal theory. In the first half of the dissertation, I propose a new understanding of mercy as a moral response to injustice within existing criminal justice systems. In the second half, I argue that certain expressions of blame are an injustice plaguing most criminal justice systems. In short, I am highlighting a new type of injustice and suggesting a new mode of response to injustice. In my analysis of mercy in Part I, I distinguish between two concepts of mercy in Western political thought: negative mercy and positive mercy. To grant negative mercy is to compassionately spare someone from harsh treatment that she deserves. To grant positive mercy is to respond to someone justly when unjust social rules call for a harsher response. Following Seneca and departing from most contemporary philosophical literature, I focus on the concept of positive mercy. I argue that officials within criminal justice systems have moral reason to exercise positive mercy and that most political communities have moral reason to incorporate a general practice of positive mercy into their criminal justice systems. I argue that judges who exercise positive mercy are not impermissibly derogating from rules in service of personal feelings, but are rather serving the rule of law and fulfilling their obligation to support just institutions. In my analysis of blame in Part II, I identify a species of blame that I call abrasive blame: the expression of attitudes meant to hurt a person because she did something wrong. The political community expresses abrasive blame toward criminal offenders through the organ of the criminal justice system. Although I argue that this abrasive blame is permissible under certain conditions, the justification is fragile at best. I argue that it is unfair for the political community to abrasively blame battered offenders and fragile offenders. I raise a red flag about abrasive blame toward these offenders; I do not argue that it is necessarily wrong to punish them. I suggest that in some cases, the exercise of positive mercy might be the political community's best response to these offenders.

vii T ABLE OF C ONTENTS

INTRODUCTION: “WHAT IS TO BE DONE?” ........................................................ 1

PART I. .............................................................................................................................. 9

CHAPTER 1: TWO CONCEPTS OF MERCY ........................................................... 9

S ECTION I:

N EGATIVE M ERCY ...................................................................................... 12 S ECTION II:

S ENECA ’ S M ERCY ...................................................................................... 18 S ECTION III:

P OSITIVE M ERCY ...................................................................................... 31 S ECTION IV:

S TUMBLING B LOCKS FOR N EGATIVE M ERCY ........................................... 40 CHAPTER 2: DEFENSE OF POSITIVE MERCY ................................................... 45

S ECTION I:

O UTLINING A P RACTICE OF P OSITIVE M ERCY ............................................. 47 S ECTION II:

L AW -A BIDING P OSITIVE M ERCY ............................................................... 51 S ECTION III:

O UTLAW P OSITIVE M ERCY ....................................................................... 55 Rule of Law and the Case Against Positive Mercy .................................................. 58 The Strategy of My Response ................................................................................... 66 Positive Mercy in Service of Law’s Rule ................................................................. 70 S ECTION IV:

A N O BJECTION ......................................................................................... 87 C ONCLUSION OF P ART I: ................................................................................................ 92 PART II............................................................................................................................ 95

CHAPTER 3: THE STING OF BLAME .................................................................... 95

viii S ECTION I:

A BRASIVE B LAME ....................................................................................... 98 S ECTION II:

I S A BRASIVE B LAME P ERMISSIBLE ?......................................................... 105 S ECTION III:

R EASONABLE D ISAGREEMENT ON A BRASIVE B LAME ............................. 109 The Qualified Retributivist ..................................................................................... 110 The Hard Incompatibilist ........................................................................................ 112 The Qualified “Pacifist” .......................................................................................... 113 The Tough-Love “Pacifist” ..................................................................................... 116 An Objection ........................................................................................................... 117 S ECTION IV:

A BRASIVE BLAME IN PERSONAL RELATIONSHIPS ..................................... 125 S ECTION V:

C ONTRAST TO S CANLON ........................................................................... 129 CHAPTER 4: THE POLITICAL STING OF BLAME ........................................... 133

S ECTION I:

A BRASIVE B LAME IN C RIMINAL J USTICE S YSTEMS ................................... 135 S ECTION II:

T HE P ERMISSIBILITY OF THE P OLITICAL S TING ........................................ 145 The Rules ................................................................................................................ 147 Why Follow the Rules? ........................................................................................... 150 CHAPTER 5: SUBSTANTIAL WOUNDS AND THE BANDAGE OF MERCY . 158

S ECTION I:

B ATTERED O FFENDERS ............................................................................. 159 S ECTION II:

F RAGILE O FFENDERS ............................................................................... 174 S ECTION III:

W OUNDS , NOT P ERMISSIBLE S TINGS ...................................................... 182 CONCLUSION: MERCY AS A BANDAGE? .......................................................... 188

W HAT IS TO BE DONE FOR BATTERED AND FRAGILE OFFENDER S ? ................................ 188 W HAT ABOUT M ERCY ? ................................................................................................ 190 REFERENCES .............................................................................................................. 197

I NTRODUCTION :

“W HAT IS TO BE DONE ?”

“What you can’t put right you must try to make as little wrong as possible. For things will never be perfect, until human beings are perfect – which I don’t expect them to be

for quite a number of years!” ~Sir Thomas More 1

A popular approach in the philosophy of criminal punishment is to reflect on what a just system of criminal punishment would look like if it were to exist in a near ly ideal political community. This approach offers valuable insight into the conditions under which punishment can be just. The practical application of the approach, however, is limited. It calls for political communities to satisfy the conditions under which punishment can be just, but it is relatively silent on what these communities should do i f these conditions remain unsatisfied. Unfortunately, these conditions do remai n unsatisfied in many political communities around the world. 2 Most existing systems of punishment are not fully just and requisite reform is not expected to be complete in the near future.

1 More, Utopia, 42. 2 For example, Herbert Morris maintains that the justice in punishment is conditional on there being a legal system that imposes an equal amount of benefits and burdens upon all . Kant argues that justice in punishment is conditional on punishment being consistent wi th respect for offenders (and on law being in place to ensure equal liberty among peopl e). A Rawlsian view (and other mixed theories) requires that punishment offer more sec urity than other reasonably available alternatives if it is to be just. I doubt that th ese conditions are met in political communities around the world.

2

In the present, Lenin’s question is pressing: What is to be done? For better or worse, philosophical analysis of punishment generally leaves us without much (if any ) guidance on this question. In a world where 9.8 million people are kept behind bars, many of them unjustly, this question is too pressing to ignore. The question is especi ally pressing in the United States. This country has the largest incarceration ra te in the world, keeping over 2.3 million men and women in prisons and jails. 3 Another 5.1 people are on parole or probation. 4 In total, 7.4 million people in America (1 in 31) are under correctional supervision – more than the population of Los Angeles, Chicago, and Boston combined. 5 These figures have been steadily climbing for decades without much sign of stopping. 6 If any American practices of criminal punishment are unjust (as many

3 The United States has the highest incarceration rate in the world: 756 per 100,000 people in America are incarcerated. Russia and Rwanda are respectively se cond and third with rates of 629 per 1000,000 and 604 per 100,000 people. Almost three fifths of countries (59%) have rates below 150 per 100,000. The world prison population rate is estimated at a rate of 145 per 100,000. The US has about 25% of the world’s prison population, although it has only 4% of the world’s total population. The US may also have the largest total prison population (with 2.3 million behind bars), but this statistic is

disputed. Although the Chinese government reports that it has 1.5 million sentenced prisoners, non-governmental sources estimate that China imprisons at least 2.5 mil lion people. Either way, the United States is still the world leader in per capita i ncarceration. Walmsley, “World Prison Population List.” 4 U.S. Bureau of Justice Statistics, “Correctional Populations in the United State s, 2009.” 5 U.S. Census Bureau, “State and County QuickFacts.” 6 For analysis of why figures are rising, see, for example, Garland, The Culture of Control . For analysis of why American figures are particularly rising, see Whitman,

Harsh Justice , and Stuntz, “The Pathological Politics of Criminal Law.”

3

reasonably suspect they are 7 ), then there is no time like the present to ask Lenin’s question: What is to be done? In hope of shedding some light on this question, I recommend taking a slightly different approach to philosophical analysis of criminal punishment. In addition to thinking about what a system of punishment would be like if it were to exist in a nearly ideal polity, I suggest investigating existing criminal justice s ystems. By “criminal justice system,” I mean the institutions of a political community that are charged with the task of detecting and punishing violations of criminal law—from arrest to indictment to sentencing and parole. Investigation of these systems should seek to uncover proble ms of justice that may be lurking within them. Although most philosophers 8 are not particularly well positioned to critically review all the ins and outs of criminal justi ce systems, they are well positioned to raise red flags about injustice. They are equipped to reve al prima facie reasons why general practices and rules of criminal justice sy stems might, pending fuller analysis, be unjust. 9 But philosophical analysis of criminal punishment should not stop at raising red flags within existing systems. Philosophical analysi s can also shed light on what people ought to do in the short-term and long-term to address the injustice

7 In the words of Supreme Court Justice Anthony Kennedy: “It requires one with mor e expertise in the area than I possess to offer a complete analysis, but it doe s seem justified to say this: Our resources are misspent, our punishments too severe, our sentences too long…In too many cases mandatory minimum sentences are unwise and unjust,” (Address at the American Bar Association Annual Meeting). 8 Jeremy Bentham and John Stuart Mill are among the chief exceptions here. 9 I take Joel Feinberg (in “The Expressive Function of Punishment”) and Herbert M orris (in “Persons and Punishment”) as paradigm examples of philosophers who investigated existing systems of criminal punishment and raised red flags.

4

they find in criminal justice systems. Although most philosophers 10 are not well positioned to draft legislative reform bills or detailed plans for interim a ction, they are equipped to highlight prima facie moral reasons for and against general modes of r eform and interim action. Given this general approach to philosophical analysis of criminal punishment, my dissertation has two core parts. In the first part, I assume that existing criminal justice systems have at least some unjust rules and I investigate what should be done i n light of this fact. 11 Unjust rules give people moral reason to act in a number of ways, for example to work for reform, to protest, and to develop interim coping strategies. I argue that

unjust rules within criminal justice systems also give officials moral re ason to exercise mercy within those systems. I argue not only that officials have moral reason t o exercise mercy, but also that political communities have reason to incorporate a gener al practice of mercy into their criminal justice systems. I am not arguing that merc y should, all- things-considered, be exercised and incorporated in criminal justice system s. I am rather claiming that there is prima facie reason to put (or perhaps more accurately resurrect) mercy on the menu of options for individual and institutional action within a less-than- fully just criminal justice system.

10 Bentham and Mill are again among the chief exceptions here. 11 In the second part, I raise a red flag suggesting that existing syste ms may have unjust rules. But my argument does not prove that existing systems do have unjust rules. Defending this assumption is beyond my scope. If the reader disagrees with it , she is welcome to read this part of the dissertation as an investigation of how people might

reform or cope with unjust rules in criminal justice systems if such unjust rules were to exist.

5

My argument in the first part of the dissertation is about how officials migh t use mercy to respond to injustice in systems of criminal justice. My argument i n the second part raises a red flag about those systems of criminal justice. I prese nt reason to suspect that modern criminal justice systems, especially the American system , may be harboring unjust practices and rules that have thus far escaped critical radar. Thes e practices concern the institutional expression of what I call abrasive blame toward o ffenders. I identify abrasive blame as the expression of attitudes intended to sting a pers on for having done something wrong. I argue that although the expression of abrasive blame in the criminal justice system may be permissible toward some offenders, it i s prima facie impermissible toward (at least) two types of offenders. Criminal justic e systems generally have rules that call for abrasively blaming these offender s even though doing so is prima facie impermissible. I raise a red flag about these rules a nd I suggest that a political community has reason to reform them. In the conclusion, I discuss how the two parts of the dissertation can work together. In the first part I argue that there is reason to exercise me rcy in response to unjust rules. Then I identify a set of potentially unjust rules that could give oc casion for such exercise. Put in a different order, I identify a set of potentially unjust rules and argue that insofar as they are in fact unjust, officials in the criminal justi ce system have reason to exercise mercy in light of them. Although the two parts of the dissertat ion work together, they do not strictly depend upon one another. Rejection of one part does not preclude or jeopardize acceptance of the other part. Thinking about how to address problems (Part 1) is different from thinking about which problems we have to address (Part 2). But both must be done if we are to answer the question: What is to be done?

6

With this general frame of the argument in place, I give a more specific outline of the chapters to follow. Part I: A Case for Mercy Chapter 1: Two Concepts of Mercy

In this chapter, I analyze the conceptual nature of mercy. I argue that there are two concepts of mercy: negative mercy and positive mercy. Negative mercy is compassionately sparing someone from some harsh treatment that she deserves . Positive mercy, which is not the focus of contemporary literature but which is inspired by Seneca’s “On Mercy,” is treating a person justly when unjust social rules c all for giving her harsher treatment. I suggest that the conceptual contours of negative mer cy pose significant challenges for using it in the context of most criminal justic e systems. Positive mercy lacks these problematic contours and lies ready for further investigation. Chapter 2: Defense of Positive Mercy

Having explained the concept of positive mercy in the previous chapter, I investigate its potential merit in the context of criminal justice. I dist inguish between law- abiding positive mercy (which requires an official to derogate from a social rule but not a law) and outlaw positive mercy (which requires an official to derogate from a l aw). I argue that individual actors in criminal justice systems have reason to exerc ise both kinds of positive mercy. I also argue that political communities have reason to incorpora te a general practice of positive mercy into their criminal justice syste ms. Exercises of positive mercy not only achieve substantive justice, but also help serve the rule of la w. Part II: Abrasive Blame and its Wounds Chapter 3: The Sting of Blame

7

In this chapter, I identify a phenomenon that I call abrasive blame: the expr ession of attitudes that are meant to sting a person because she did something wrong. Abras ive blame is a common phenomenon in many people’s lives and it is very common within existing criminal justice systems. It is tempting to presume that abras ive blame is a morally permissible response to any agent who freely and responsibly commits a wrong action. I challenge this presumption. Abrasive blame is only permissible whe n it is properly embedded in reasonable social practices that are developed within pe rsonal relationships and communities. My claim is not that abrasive blame is usually impermissible, but rather that its permissibility is conditional on the feature s of the relationships and communities in which it is expressed. Chapter 4: The Political Sting

Having identified abrasive blame and the general conditions of its permissibili ty, I consider whether it is permissible within the context of a political community. I do so with an eye to considering whether it is permissible within the more particula r context of political communities’ criminal justice systems. When a political communit y has developed decent social rules about abrasive blame (as almost all have), there is presumptive reason for people to act in accord with such rules and engage in abrasi ve blame. Given this presumptive reason, many (but not all) acts of abrasive bla me within political communities are prima facie permissible. Chapter 5: The Sting’s Wounds in Criminal Justice

Armed with the work of Chapters 3 and 4, I direct my focus to flagging injustice

in existing criminal justice systems. I highlight a general deficiency in social rules that govern abrasive blame toward criminal offenders in several political communit ies. In

8

several of these communities (e.g. America), the rules deem it appropriate for the criminal justice system to abrasively blame what I call battered and f ragile offenders. I argue that it is unfair for the political community to abrasively blame batt ered and fragile offenders. Criminal justice officials have strong reason not to abrasively bla me these offenders and to change social rules that would license such blame. In general, bl aming battered and fragile offenders usually does not sting them permissibly; it un fairly strikes at them and inflicts substantial wounds.

PART

I. C HAPTER 1:

T WO C ONCEPTS OF M ERCY

“Everybody's cryin’ ‘Mercy’ When they don't know the meanin’ of the word.” ~ Mose Allison 12

Modern political communities aim for justice under law in responding to crime. The political institutions that respond to crime are criminal justice systems. People expect to “see justice done” in courts of law. One may doubt that criminal justi ce systems achieve justice, but justice under law is certainly their aim. Jus tice, however, has not always been the aim of political communities’ responses to crime. At the t urn of the first millennium, Seneca maintained that mercy is the proper aim of a political ruler’s response to crime. 13 His letter on how rulers ought to respond to crime is not titled, “On Justice,” but “On Mercy.” 14 He judges the quality of a ruler by tallying up his merciful actions. According to Seneca, a ruler should respond to all offenders with mercy. To a

modern audience, this claim is bizarre in at least two ways. First, most member s of a

12 Quoted by Rainbolt, “Mercy: In Defense of Caprice,” 226. 13 Seneca wrote “On Mercy” in 55-56 AD. For historical context, see De Clementia , ed. Braund. 14 The Latin title of Seneca’s work is “De Clementia.” “Clementia” is tra nslated as either “mercy” (see Moral Essays , trans. Basore and Dialogues and Essays, trans. Davie) or “clemency” (see De Clementia , trans. Braund and Anger, Mercy, Revenge , trans. Robert A. Kaster and Martha C. Nussbaum). Throughout the dissertation, I use “mercy” r ather than “clemency.”

10 modern audience think that if a ruler were to respond to all offenders in one way, it would be with justice, not mercy. Second, Seneca suggests that a ruler should never withhol d mercy from an offender. This position conflicts with the modern thought that mercy is supererogatory, certainly not morally required toward any offender, let alone eve ry offender. Why is Seneca’s discussion of mercy so jarring to the modern ear? Should w e bend our ear to listen to his discussion or reject it as out of tune? Loosely echoing the strategy of Isaiah Berlin in “Two Concepts of Libert y,” I identify two concepts of mercy in Western political thought: negative mercy and positive mercy. To grant negative mercy is to compassionately spare someone from harsh treatment (generally in the form of punishment) that she deserves. To show posit ive mercy is to respond to someone justly when unjust social rules call for a harsher response (generally in the form of punishment). Contemporary people generally use the term

“mercy” to mean negative mercy whereas Seneca and other pre-modern thinkers generally use it to mean something closely akin to positive mercy. The stark cont rast between these two concepts explains why Seneca’s discussion jars the modern ear . The purpose of this and the following chapter, however, is not to track changes in the use of the term “mercy” over time. My aim is to compare negative mercy a nd positive mercy with an eye to investigating whether there is good reason to ex ercise either (or both) in a criminal justice system. I argue that although negat ive mercy faces significant challenges for use in most criminal justice systems, posi tive mercy does not face such challenges. In the next chapter, I explore positive mercy more fully and argue that there is reason to exercise it in most criminal justice systems. My a rgument is not that positive mercy is closer to some metaphysical truth about Mercy (I doubt the re is

11 one), but that it is likely more apt for use in most criminal justice systems . We should not only bend our ear to Seneca’s discussion of mercy, but we should also maintain, or perhaps resurrect, something like his concept of positive mercy in our working repert oire of political and jurisprudential concepts. The structure of the chapter is as follows. In Section I, I present the conce pt of negative mercy which is at the forefront of most contemporary philosophical and jurisprudential literature on mercy. Negative mercy is compassionately s paring someone from deserved harsh treatment (generally in the form of punishment). In Section I I and III, I present the concept of positive mercy. I begin by offering an inte rpretation of Seneca’s “On Mercy” in Section II. My interpretation is intended to be charit able and true to his work, but my main objective is not to pin down historic Seneca. Instead, I am climbing on what I take to be his shoulders in order to see and spell out what I call

positive mercy. In Section III, I identify positive mercy as treating s omeone justly when unjust social rules call for harsher treatment (generally in the form of puni shment). I close this section with a comparison of positive mercy and negative mercy. They are both the prerogative of a person with power to give or withhold harsh treatment, but they

share little else in common. After having identified and contrasted negative and positive mercy, I turn to analyze their respective merit in the context of criminal justice. In S ection III, I argue that negative mercy faces significant challenges for use in a crimi nal justice system. The features that count as strikes against negative mercy in the context of cr iminal justice do not apply to positive mercy. In the next chapter, I show that there is reason to exerc ise positive mercy in most criminal justice systems.

12 Section I: Negative Mercy Most philosophers and lawyers writing about mercy over the past fifty years share a general concept of mercy that I call negative mercy . Negative mercy is sparing someone from deserved suffering (generally the suffering of punishment) out of compas sion or some other special concern for her. Negative mercy is distinct from justice, it is supererogatory, motivated by compassion or some other form of special concern, and unrestrained by reason. In this section, I consider each of these features i n turn and show that it is indeed part of the received view on mercy in contemporary political thought . Most authors endorse most of these features, but some reject one or more. I found no author, however, who rejects any features of the received view without argument. 15 For the purpose of this section, I will use the term “mercy” to mean negative mer cy.

Full document contains 219 pages
Abstract: This dissertation analyzes criminal justice from the perspective of non-ideal theory. In the first half of the dissertation, I propose a new understanding of mercy as a moral response to injustice within existing criminal justice systems. In the second half, I argue that certain expressions of blame are an injustice plaguing most criminal justice systems. In short, I am highlighting a new type of injustice and suggesting a new mode of response to injustice. In my analysis of mercy in Part I, I distinguish between two concepts of mercy in Western political thought: negative mercy and positive mercy. To grant negative mercy is to compassionately spare someone from harsh treatment that she deserves. To grant positive mercy is to respond to someone justly when unjust social rules call for a harsher response. Following Seneca and departing from most contemporary philosophical literature, I focus on the concept of positive mercy. I argue that officials within criminal justice systems have moral reason to exercise positive mercy and that most political communities have moral reason to incorporate a general practice of positive mercy into their criminal justice systems. I argue that judges who exercise positive mercy are not impermissibly derogating from rules in service of personal feelings, but are rather serving the rule of law and fulfilling their obligation to support just institutions. In my analysis of blame in Part II, I identify a species of blame that I call abrasive blame: the expression of attitudes meant to hurt a person because she did something wrong. The political community expresses abrasive blame toward criminal offenders through the organ of the criminal justice system. Although I argue that this abrasive blame is permissible under certain conditions, the justification is fragile at best. I argue that it is unfair for the political community to abrasively blame battered offenders and fragile offenders. I raise a red flag about abrasive blame toward these offenders; I do not argue that it is necessarily wrong to punish them. I suggest that in some cases, the exercise of positive mercy might be the political community's best response to these offenders.