Misguidedly Merciful? Further thoughts on Retributivism in Meyer's Merciful State

Last week here on Prawfs, I began a reply to Linda Ross Meyer's The Merciful State, which in turn is a critique in parts of my article from a couple years ago, Against Mercy. In the previous post, I noted that my account of retributivism, which I've been developing and tweaking over the last ten years, is not vulnerable to the charge Professor Meyer made, namely that its value can be reduced to some form of expressivist utilitarianism. Today, I want to pick up on a couple other misreadings of my work, which I think will be helpful to point out for those interested in the retributivist defense of punishment and its relationship to mercy and executive clemency.

3. Misunderstandings about Mercy and Equality

  In Against Mercy, I argued that dispensations of state mercy undermine our commitment to treating all citizens with equal concern and respect. In turn, Meyer writes that “Markel’s arguments from equality make traditional assumptions that we are already equal ex ante, before crime, in being subject to equal prohibitions by the law. As many commentators have pointed out, the prohibitions of the criminal law do not affect us or tempt us each equally. For a poor person to follow the law requires greater forbearance and heroism than for a rich person. And, the flaws in the argument that criminals take more than their fair share of license have been pointed out by other commentators. The “license” to kill is not a license most of us desire, nor is the “superiority” claimed by the criminal over the victim one that can necessarily be readjusted by punishing or humiliating the criminal.”[1]

There are two challenges Meyer raises and both need unpacking: first, the license a criminal arrogates is not one most of us desire, and second, the superiority claim of the offender cannot be readjusted by punishing or humiliating the criminal.

 

a)  As to the first point, Meyer is right to note that many commentators have noted that the prohibitions of the criminal law do not tempt us equally. What Meyer fails to observe, however, is that I am one of those commentators. This omission is especially jarring given that I address this point in “Against Mercy,” and my prior pieces involving retributivist theory. Here is some of what I have written on the matter in Against Mercy:

In a liberal democracy, punishment serves under equality’s flag. When I steal,  rape, or murder, I am arrogating a license to act in ways that the polity has  officially proscribed. I lord this license over my victim and those around me. It is a claim of superiority—namely, that I am a law unto myself, that society’s laws do not bind me. On this view, it does not matter that not everyone, if given  the chance, would similarly seek to steal, rape, or murder. All that matters is that I am defecting from a legal order to which I have good reason to give my allegiance, and I am defecting in such a way that I am taking license to which others are not entitled. If no attempt is made to punish me, my claim to superiority  over others commands greater plausibility than it would if I were made to experience some level of coercion that is not inflicted on nonoffending fellow citizens. When a person is aware of the credible threat of the state’s intent to impose some level of hard treatment that would otherwise not be inflicted, the state is giving its best reasonable efforts to reduce the plausibility of a false claim   to superiority. (Emphasis added.)[2]

 

What’s going on here, as best as I can tell, is that Professor Meyer attributes to me a view that is found in Professor Herbert Morris’s famous work, Persons and Punishment.[3] As I wrote earlier: Prof. Morris

 

thought that retribution is deserved for criminal wrongs because a criminal’s action ‘renounces a burden which others have voluntarily assumed and thus [he] gains an advantage which others … do not possess.’ For Morris, punishment was necessary to end the free-riding on the political agreement of others. But as a conceptual matter, punishment wasn’t warranted to end free-riding itself, but rather to achieve social goals such as security in person and property and to communicate moral norms to perpetrators and non-perpetrators alike. The fact that free-riding might terminate by threat of punishment is a consequence of retribution but not its purpose.[4]

 

Here’s a little more of what I wrote, which directly relates to Professor Meyer’s attempted critique of my view:

 

The language of free-riding implies that everyone else would enjoy the benefit of murder or robbery, when in fact many of us would not derive any satisfaction from that license. Viewing retribution only as a means of limiting free-riding thus conceives the issue too narrowly. It wrongly presumes we all have the motivation to do wrongful acts. Moreover, on the free-riding view, it is not clear that ending the free-riding is the task of the state.

 

The idea of untethering, on the other hand, more accurately captures the more significant responsibility of participating in the reasonable but significant obligations of a larger social enterprise, and thus intimates the role the state needs to play here. The metaphor of [a criminal’s] untethering needs strengthening though. For the perpetrator by his unlawful act does more than just withdraw or cut himself off from society. As stated earlier, the criminal act is a claim of superiority by the criminal over other citizens and the polity itself. Leaving this criminal act unaddressed provides evidence for this claim of superiority because the unaddressed actus

reus

(or, morally wrong act) creates the impression that the perpetrator is justified in his claim of superiority. Thus, by responding to his crime for what it is, we are destroying (or at least diminishing) the evidence to this false claim. By experiencing coercion at the hands of the state, the criminal’s claim to superiority is contested and denied by the state.[5]

 

Thus, if I have it right, Professor Meyer incorrectly attributes a view (let’s call it X) to me that I don’t make -- a view that is better identified with an aspect of Herbert Morris’ early account of retributivism. She then raises a critique of X as if X were my position, but neglects to mention that I actually raise the very same critique of X and provide a way around it. On the merits, it bears mention that Jean Hampton deserves credit for shifting retributive punishment’s justification from notions of ending free-riding off benefits few people wanted anyway to the repudiation of false claims of superiority made by offenders. My gloss on Hampton in this particular respect was to explain the need to move from a victim-centered approach to one that emphasized the state’s substantial (and arguably better positioned) interest in repudiating the false claim of superiority made by offenders against the state (and society more generally). 

 b)

Meyer’s second challenge against my view under the equality heading is that the offender’s claim of superiority cannot necessarily be readjusted through the punishment or humiliation of the offender. This challenge is quite misplaced. After all, in Against Mercy and elsewhere, I do not make the claim that punishment by the state always achieves “the readjustment” of an offender’s false claim to superiority. What I argue, drawing inspiration again from Jean Hampton, is that the state’s reasonable efforts at punishing an offender diminishes the plausibility of the offender’s claim to superiority.[6] Obviously, an offender might still cling to his notions of superiority notwithstanding the state’s punishment. But he can no longer wave an unanswered crime (or a sentence discounted on grounds morally irrelevant to the commission of the crime) as plausible evidence of that claim to superiority.

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[1] See TMS at 20.

[2] See AM at 1446-47 and footnotes therein; see also Markel (2001) at 2197-98 and n.32.

[3] Jeffrie G. Murphy, ed., PUNISHMENT AND REHABILITATION, 40, 42 (1973)

[4] See Markel (2001) at 2165 n. 32.

[5] See Markel 2001 at 2198.

[6] See AM at n.40 (“The infliction of hard treatment serves as the state’s coercive measure, which is designed to diminish the plausibility of the claim of superiority a criminal makes by his criminal action against his victim, fellow citizens, and government.”) (emphasis added); id. at 1447 (“If no attempt is made to punish me, my claim to superiority over others commands greater plausibility than it would if I were made to experience some level of coercion that is not inflicted on nonoffending fellow citizens.”).