NCJ Number
145778
Journal
Seton Hall Law Review Volume: 24 Issue: 1 Dated: (1993) Pages: 289-346
Date Published
1993
Length
59 pages
Annotation
The relationship between mercy and justice has been a source of controversy in many disciplines and has become a significant issue in criminal sentencing systems that focus on retribution.
Abstract
Theories on the virtue of mercy show that mercy is neither a redundancy of justice nor an indefensible deviation from justice. Instead, for a judge who must sentence an offender from a range of authorized punishments, mercy is a guarantor of justice. Therefore, in a criminal justice system steeped in respect for innate human dignity, mercy is a moral virtue. This conclusion troubles many retributivists because they believe viewing mercy as a moral virtue focuses excessively on concern for the criminal's perspective. Retributivists must recognize, however, that it is not possible to implement a truly retributive system of criminal punishment and do so as an advocate for one or another party to a criminal episode. Kantian retributivism insists on an egalitarian valuation of the intrinsic worth of all rational human beings, whether they are crime victims or defendants. This does mean that victims and criminals are entitled to comparable treatment by society. The criminal has done wrong and deserves to be punished, while the victim has been wronged and deserves to see his or her intrinsic worth vindicated and affirmed. Nonetheless, retributivism requires that a criminal be judged consistent with his or her status as an intrinsically worthy human being endowed with the capacity of reason. To the extent that retributive theory does not acknowledge defendant-protective implications, it remains stunted and incomplete retributivism. Mercy stands between retribution and revenge as a check against overly identifying with those who have been wronged by a crime. 126 footnotes