Have mercy?

Criminal Justice | Where forgiveness fits into our system of justice
by David Skeel
Posted 2/08/20, 01:22 pm

As WORLD’s Effective Compassion podcast series continues, this Wall Street Journal article by David Skeel from December asks the question: Do forgiveness and mercy have a place in our law? Skeel is a Christian, a University of Pennsylvania law professor, and a member of WORLD News Group’s board of directors. The two books he reviews sound interesting, but this is one of those reviews that’s valuable even if you never touch the books under discussion. —Marvin Olasky

American public life is full of disputes about justice and forgiveness. Take the Dreamers—the nearly 700,000 young adults who came from Mexico and elsewhere as children, did not obtain citizenship or permanent resident status, and have been in legal limbo since President Obama signed an executive order giving them temporary legal status in 2012. Depending on whom you talk to, these immigrants should either be deported immediately or given full citizenship.

When the brother of Botham Jean, the unarmed black man shot in his Dallas apartment by Amber Guyger, a white off-duty police officer, asked the judge if he could hug Guyger and offer forgiveness at the end of her trial, reactions were similarly divided. Many found the brother’s gesture of mercy profoundly moving; for others, it was only a distraction from justice.

Two types of forgiveness are intertwined in these instances. The first is legal forgiveness. Our legal system is committed to justice, and to honoring the rule of law. But sometimes we make exceptions, declining to punish a defendant who has violated the law or providing partial amnesty for tax evaders. This is legal forgiveness. (Mercy, which Shakespeare’s Portia famously praises as “twice blest” in The Merchant of Venice, is slightly different: It is leniency in applying the law rather than forgiveness.)

The second type of forgiveness, interpersonal, is often described as a “release of resentments.” When Brandt Jean offered to forgive Amber Guyger, he was letting go of his anger against his brother’s killer and so extending interpersonal forgiveness. How can legal forgiveness be reconciled with the rule of law? What do legal and interpersonal forgiveness have to do with one another? These questions are implicit in the current controversies about justice and mercy or forgiveness, and they are the focus of two thoughtful but idiosyncratic new books.

In On Mercy, Malcolm Bull conducts a clever thought experiment on the question of whether mercy might not only be reconciled with justice but could displace it at the center of our political life. Although Mr. Bull is not a professional philosopher—he’s an Oxford professor of art and the history of ideas—he plays one in this book. In 163 readable pages of text, he cycles through Seneca, Niccolò Machiavelli, Thomas Hobbes, David Hume, Judith Shklar, Bernard Williams and more. Mr. Bull begins with a very capacious definition of mercy, encompassing both mercy and legal forgiveness. “An act of mercy,” he writes, “is an action that is both intended to be and turns out to be less harmful than it might have been.” Even a torturer may be acting mercifully, Mr. Bull says, if he tortures his victim less than he might have done. If there is an ordinary level of harm—say, an ordinary criminal sentence, to use a less extreme example—it is merciful to inflict less than that expected, ordinary level.

Even a torturer may be acting mercifully, Mr. Bull says, if he tortures his victim less than he might have done.

For Seneca and Cicero, Mr. Bull argues, mercy was the chief political virtue, the difference between legitimate rule and tyranny. But in the Renaissance, the moral underpinnings of mercy, and in many respects the virtue itself, were abandoned by realist philosophers. Machiavelli insisted that a ruler should avoid mercy and instill fear in his subjects, lest his authority be undermined. Drawing on the philosopher Judith Shklar’s claim that aversion to cruelty is universal, Mr. Bull contends that Machiavelli is mistaken, and that Michel de Montaigne, who had critiqued him, is closer to the mark. Even if politics is all about power, Mr. Bull reasons, there is a role for mercy, since “politics, as opposed to war, is distinguished by restraint in the use of violence.”

Having opened the door for mercy, Mr. Bull soon imagines a world where mercy is ubiquitous, since mercy comes into play whenever someone has “power over” another. The vulnerable always have a claim against those who have power over them, he argues, and have no obligation, holding no power of their own, to show mercy themselves. Mr. Bull concludes by extending these principles to colonized peoples (“the powerless may invade the nation-state that has power over them”), international trade (“even those subject to asymmetrical trading relationships might take over a whole or part of a nation-state”), other species, future generations and, finally, turning the tables, the possibility of a “future superintelligent singleton” before whom we are powerless. By the end, it’s hard to avoid the suspicion Mr. Bull is pulling our leg. I don’t think he is.

He hints that his real target may be capitalism. “Mercy had once been considered a remedy for the cruelties of war,” he says early in the book, “but wars driven by the passions were replaced by … the ‘silent war’ waged among nations by trade.” Mr. Bull returns to this theme in the final paragraph of On Mercy, condemning traditional theories of justice as the “extrapolation of a particular set of values, the rational calculation and self-interest” that are “the values of capitalism.”

This jab at capitalism nicely highlights the limits of Mr. Bull’s project. The era he looks longingly back to was a time of unrelenting violence. (It is telling that Seneca’s plea for mercy was addressed to none other than Nero.) The age of nation states and capitalism has its problems, but it has brought a remarkable decline of violence. It also has brought the most dramatic decline in poverty in history. This is a lot to give up for a world in which the vulnerable are constantly forced to beg for mercy from those with power over them.

After the sustained abstract reasoning of On Mercy, it’s a relief to get down to particulars. Harvard Law professor and former dean Martha Minow’s When Should Law Forgive? offers precisely this, exploring the role of forgiveness in three wildly divergent real-world settings: the child soldiers of war-torn countries such as Sierra Leone; bankruptcy and debt forgiveness; and the use of amnesties and pardons. When Should Law Forgive? is perhaps best seen as a sequel to Between Vengeance and Forgiveness, Ms. Minow’s fine 1998 meditation on the Truth and Reconciliation Commission set up in South Africa after the end of Apartheid, and of other responses to mass atrocities.

Ms. Minow is a careful thinker and writer, weighing each argument and counterargument for a given proposition. Should child soldiers be treated as victims rather than wrongdoers, since many were pressured into service? Perhaps, but if they are treated solely as victims, forgiveness is no longer possible “because forgiveness is only for those who have committed a wrong.” She suggests that requiring former child soldiers to “confess, apologize, and acknowledge wrong doing” may be preferable to simply giving them amnesty, but warns that “wresting confessions … might produce the appearance of apology but undermine the genuine exchanges important to forgiveness.”

Should child soldiers be treated as victims rather than wrongdoers, since many were pressured into service?

This mode of analysis can yield penetrating insights. Many legal scholars are enthusiastic proponents of so-called odious debt doctrine—the theory that a new regime should not be required to pay debt incurred by a corrupt predecessor if ordinary citizens did not benefit from the proceeds of the debt. Ms. Minow is more skeptical. She worries that “odious” is extremely difficult to define in practice, and that vulnerable citizens might suffer if the threat of repudiation discourages loans to oppressive regimes.

The common theme linking Ms. Minow’s collection of topics seems to be a holistic approach to criminal law and other issues called “restorative justice.” By acknowledging that the community itself may have contributed to the wrongdoing, and by “restoring” the offender, forgiveness can benefit the whole community. She suggests this has relevance not just for child soldiers, but for consumer debtors and distressed cities, and for distinguishing between beneficial and problematic pardons and amnesties. She characterizes President Ford’s pardon of Richard Nixon as beneficial, but President Trump’s pardon of Joe Arpaio, the anti-immigration sheriff, as problematic.

After the chapter on child soldiers, interpersonal forgiveness figures in this book much less prominently than I would have expected, re-emerging only in the final pages. My former colleague at the University of Pennsylvania, now judge, Stephanos Bibas has written extensively about the potential role of interpersonal forgiveness in the criminal justice system. Mr. Bibas points out that “[crime] victims care much more about receiving restitution and apologies” than about the length of the offender’s sentence, and says that “prison-based programs should encourage wrongdoers to meet with their victims if the victims are willing, to listen to their stories, apologize, and seek their forgiveness.” Defendants who apologize should not be treated differently from those who do not, and no one should be pressured to apologize (as Ms. Minow rightly emphasizes). But incorporating this human dimension might enhance the legitimacy and effectiveness of our criminal justice system.

There may even be a role for apology in bankruptcy. Financial distress is sometimes caused by factors entirely outside one’s control. But most people overwhelmed by debt have borrowed more than they should or unwisely run up their credit cards, and they often feel guilty about filing for bankruptcy. Providing an opportunity to apologize might make consumer bankruptcy less mechanical, and give debtors a more robust fresh start.

To be sure, just as love isn’t always the answer, interpersonal forgiveness and mercy aren’t either. Sometimes interpersonal forgiveness is not realistic or even possible, and victims may wisely decline to forgive an unrepentant wrongdoer. It’s also worth asking if “forgiveness” has any meaning if it’s not sought. Some complain that forgiveness is more often expected of women and minorities than of people like me. But interpersonal forgiveness prompted by an apologetic wrongdoer can produce the truest and most beautiful kind of reconciliation. As legal scholar John Inazu has written, this capacity to reconcile “may be the most God-like power we possess.”

Republished with the permission of the author.

David Skeel

David is a law professor at the University of Pennsylvania and a member of WORLD New Group’s board of directors.

Read more from this writer