In The Morality of Mercy, Heidi M. Hurd writes about the merits of mercy and whether retributivists are wrong in dismissing the idea that mercy is a morally valid option. From Hurd’s perspective, there are two crucial questions that must be answered when exploring mercy: 1) is this an instance of true mercy? and 2) if so, can it really be defended on moral grounds? (Hurd, 389). Often, she says, retributivists believe that mercy cannot be morally justified and that the characterization of mercy as laudable and virtuous in religion, literature, and other arenas is a mistaken confusion (390). Before a discussion of the possible merits (or lack thereof) of mercy can be had, it is important to define mercy. One way to put it is that mercy “consists of suspending a deserved penalty” or “waiving a debt” (390, 394). If desert is both a necessary and sufficient condition for punishment, and desert is present, then what could possibly be good about suspending justice? Furthermore, a retributivist might ask, “how could moral strength lie in indulging, tolerating, or forgiving another’s weakness, laziness, or viciousness?” (391).
After raising these questions, Hurd returns to the notion of mercy itself and engages in a lengthy discussion about the nature of mercy. She writes that all dictionary definitions of mercy are both “motivationally-loaded” and “causally-complex,” meaning that they necessarily have both actus reus and mens rea components (393). So which types of each of these conditions actually qualify as real mercy? Hurd provides examples of different scenarios in which we might think mercy is what is in play, when, in fact, it is not: a governor is bribed to pardon a criminal, a battered wife refuses to testify against her abusive husband, a merchant waives another’s debt as a quid pro quo (394). Since these cases are rejected as examples of true mercy, there are certain mens rea that are clearly disqualified. Another disqualified mens rea is pity — if one reduces or forgives a debt or punishment because one pities another, one is not exhibiting mercy, one is merely adjusting the penalty to the genuine desert of the other, which is true justice, not mercy (396). In the search for the one mental state necessary for mercy, Hurd next considers the desire for another’s moral well-being or moral rehabilitation. She thinks that this mens rea is sufficient, but not necessary, for mercy (397). In the end of this section, she concludes that there may be no single mens rea for mercy. Rather, “forgiveness, moral paternalism, compassion, love, and generosity may all constitute motivations that convert leniency into mercy” (397).
Next, Hurd considers the possible justifications for mercy by legal officials. She starts by claiming that “institutional acts of mercy — at the prosecutorial, judicial, or gubernatorial level — are morally (and therefore legally) indefensible,” at least from a retributivist perspective (398). The primary reason for this is that the generally laudable cases of mercy are ones in which the victims themselves display mercy to their offenders. In other words, victims may have standing to enforce or suspend debts owed to them and to exhibit mercy, but legal officials (who are not themselves victims) do not have this standing (398). To illustrate this, she considers several examples that may generally be approved of as cases in which it is acceptable for legal officials to grant mercy. The first is when officials limit the punishment of or pardon those who were wrongly convicted or who should not have been convicted because there was not sufficient evidence. Hurd says this is not an instance of mercy, but of justice. Justice is being done here, not undone (399–400). Sometime there are cases in which officials use discretion to set aside the laws that they deem unjust or reduce the legal punishment when a wrongdoer has suffered in some other way as a result of his/her crime(s). Again, when this is done, it is done in the pursuit of justice, not of mercy. As Hurd says, “to be merciful to those who would be over-punished in the absence of mercy is not to be merciful, it is to be just” (400–401). Another claim may be that punishment should be applied such that it restores the power of victims who feel powerless due to their aggressors (402). Sometimes, “victims best recover a felt sense of power and control” not by seeing to it that harm is afflicted on their offenders, but by pleading for and obtaining mercy for their offender. If individuals can be so God-like, why can the state not be? Hurd responds to this by making distinctions between individuals and the state and by arguing for an objective theory of wrongdoing (403). Another argument may be made that those serving life sentences who are released as they approach death are given mercy. Hurd believes that those who advocate for this either do so because they think life sentences are unjust, or because they are utilitarians who do not believe someone at an advanced age is likely to do any more harm (403–404). Regardless, it is not mercy that is being advocated for. All of these examples work to show, according to Hurd, that arguments for “official clemency…superficially disguise themselves as arguments for mercy, but are, in the end, predicated on utilitarian claims about how to best maximize social welfare, or otherwise invoke theories of punishment at odds with retributivism” (404).
At this point, Hurd (re)states her thesis: that desert is both a necessary and sufficient condition for punishment from the retributivist perspective when it comes to the legal realm (406). Furthermore, if one were to agree with an official granting “mercy,” it would be for the following reasons: 1) one is not truly a retributivist, or 2) one is responding to a “gap” between what the law requires and what morality demands (406). Either way, she thinks that it is a misnomer for one to describe him/herself as a defender of mercy.
But what about cases in which individuals exhibit mercy? She begins this section by noting “it is the nature of being a rights-holder that one is within one’s rights able to waive one’s rights” (407). Private actors have the right to grant mercy, but Hurd notes that this does not mean that it is moral — it is “perfectly intelligible” to praise and blame people for how they exercise their rights, due to differing notions of rights, such as deontic rights versus aretaic rights (407). While people sometimes falsely grant “mercy” which is really disguised pity, desire for equality/strength/power, or self-aggrandizement, there are genuine instances where people, in a Christ-like manner, exhibit true mercy (415). In terms of personal relationships, love, mercy, and other supererogatory actions are necessary. Hurd writes, “the very nature of love and friendship is that it fails to attend to the keeping of…a ledger [of wrongs]” (416, cf. 1 Corinthians 13:5). Furthermore, in relationships between couples, parents and children, friends, etc. “deserved love is an oxymoron, and hence, relationships that presuppose that love is properly a reward for good behavior lack any glimmer of appreciation for the ways in which true love transcends concerns of rights and duties” (417).
This being the case, it seems that conflicting characteristics are needed for being a successful and moral legal official and being a good spouse/parent/friend. While the traits necessary for each could be weighed out, Hurt thinks the traits necessary in the latter case are the most important. She concludes the paper by noting that while mercy has no philosophical place in a retributive system, it certainly has a psychological place, since those who carry out justice in the public sphere are likely to have developed the traits in their personal lives that dispose them to show mercy when it is not deserved (421).
Hurd, Heidi M. (2007). The Morality of Mercy. Ohio State Journal of Criminal Law, 4:389–421. Retrieved November 24, 2020, from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2612185.