Misguidedly Merciful? A Reply to Professor Meyer (Part 1)

  Earlier this year, Professors Austin Sarat and Nasser Hussein published a collection of essays about the nature of mercy and clemency in the modern state.[1] In that collection, Professor Linda Ross Meyer found my article from a few years ago, Against Mercy (“AM”),[2] to be sufficiently provocative that it served as a springboard to her thoughtful piece, “The Merciful State.”[3]

In The Merciful State, Meyer argues that a state that embraces mercy within its legal institutions of punishment can still be an attractive one worthy of approbation. Though I largely disagree with that claim on account of mercy’s inconsistency with retributive justice, I don’t wish to use this space to elaborate much upon whether mercy is something attractive state institutions should pursue. For the most part, readers will be able to see the nature of the disagreement by reading both pieces and determining for themselves which views about mercy for which they feel more affinity. Instead, what I’d like to focus on here in this essay is the way in which Professor Meyer motivates her defense of mercy by attacking arguments I make on behalf of retributive punishment.

To my mind, Professor Meyer’s criticisms are largely unfounded, consisting either of mistaken readings of what I wrote or unpersuasive challenges on the merits. Because enough mischaracterizations in Professor Meyer’s article exist to raise the worry that others might understand my views contrary to how I meant them, I will briefly respond to Professor Meyer’s criticisms in a way that I hope might serve to better illuminate my account of retributive punishment and what its implications are for the role of mercy in a liberal democracy. I will lay out these issues over the course of a few separate blog posts.

Let me preface this critique by noting that, at a high level of generality, Professor Meyer starts well enough. She correctly writes that I argued that mercy -- defined in my project as leniency remitted in the realm of punishment, granted out of compassion, corruption, caprice or bias -- should play no part in state punishment. She also correctly notes that, consistent with this normative view, I argue that liberal states should be chary of current practices thought to be constitutional, because they endow various actors in the criminal justice system with unreviewable discretion to dispense such mercy. This opposition to mercy is predicated on the view that mercy is inconsistent not only with retributivism, properly understood, but also with liberalism, specifically the liberal principle that recognizes all citizens as possessing an equal package of basic liberties under the law.

What follows over the next few posts is a bill of particulars that largely follows Professor Meyer’s claims about my work through her essay. To be clear, some of what follows is a response to good faith but unpersuasive challenges, while other points I make are based on what I view as straightforward misreadings of what I wrote. I will try to make obvious which are which. Separate posts will sketch out some answers to other questions raised by Professor Meyer's article, but I will begin with answers to the following two questions raised by Professor Meyer.

1.  Is Retributivism Simply Reducible to Expressive Utilities?

In the account of retributive punishment I’ve been developing over the last ten years, one of the reasons I use to explain the internal intelligibility of retributive punishment is that such punishment communicates the norm of personal accountability to offenders. The state communicates its commitment to this norm to the offender when the state attempts to detect, prosecute, and punish one’s violations of the law through coercive measures conventionally associated with punishment following adjudication. 

Professor Meyer begins her critique of my account of retributivism by looking at this issue. She notes that “With respect to moral accountability, many writers have elsewhere argued that ‘expressivist’ retributivist theories like Markel’s that rely on ‘sending a message’ to the offender or polity tend to reduce to utilitarian arguments about how best to transmit messages about law and order. One can argue, for example, that ‘sending a message’ would be better achieved via an ad campaign, or via public corporal punishment, or via punishing only the most famous, only those with community ties, or only those whose associates and victims are paying attention.”[4]

Put simply, my account is able to resist the claim that retributive punishment is simply reducible to the goal of maximizing general awareness of “law and order.”  Indeed, I have actually addressed this exact point on several occasions.[5] Unlike the unnamed “expressivist theories” Meyer vaguely alludes to, the focus for my theory is on providing a justification for the coercion the state imposes on the offender as a result of an encounter between the state and the offender through the institutions of adjudication and punishment. In other words, the theory tries to explain how coercive punishment communicates certain values to the person most in need of being connected to those values: the offender. If the offender fails to understand the basis for that communication (say for example because of mental incompetence) then there is no basis for punishment qua retribution. This is what makes my account of retributivism a “confrontational” conception of retributivism. A different way of looking at it is by distinguishing communicative accounts of punishment, where the primary emphasis is on the relationship between offender and state, and expressivist accounts of punishment, where the concern is to emit “expressive” messages to the public at large; those expressive emissions, on my account, are valuable but they arise incidentally to the confrontational relationship between state and offender. Thus, the account of retributive punishment I offer simply cannot be conflated with the goal of ensuring adequate and effective message dissemination to the public at large.

As I explain in Against Mercy and elsewhere, the expressive messages to the public are not sufficient justification for retributive punishment itself. As Professor Meyer and others note, if the goal is simply to emit messages to the public, it wouldn’t conceptually require punishment as the modus operandi. That’s not to deny punishment’s capacity for norm-projection, but it is to deny that my account of punishment is predicated strictly on that goal.

2. Is Humane Treatment of Offenders an Undeserved Mercy?

 Professor Meyer next contends (contra the view in Against Mercy) that mercy is compatible with treating offenders as responsible offenders.[7] Specifically, she explains that offenders’ responsibility is still affirmed when we extend mercy for two reasons; first because “we cannot hold finite beings responsible for all the infinite repercussions of their actions,” and second, “because we have the obligation to treat offenders humanely, we never give them the world as it would be if their inhumane acts were universal laws, for to include offenders in the circle of humanity is itself an undeserved mercy.”[8]

 The first claim is puzzling since the account of retributivism I articulate specifically limits responsibility by punishing offenders only for their misconduct and the reasonably foreseeable consequences of their unlawful actions, not for every ripple in time and space that might follow their actions.[9] As to the second and more important claim, I agree that offenders should be treated humanely but I don’t understand why treating offenders humanely is an undeserved mercy rather than the predictable and consistent effectuation of the very commitments (to moral accountability, equal liberty under law, and democratic self-defense) that motivate the account of retributive punishment I offer. Furthermore, even if treating offenders humanely is an undeserved mercy, Professor Meyer doesn’t explain why we should compound the apparent error by extending even more leniency on top of treating offenders humanely. I also wonder if Meyer is truly committed to the proposition that treating offenders humanely is in some sense undeserved. Do all crimes invariably trigger a sense of wanting to act inhumanely to the offenders? I doubt it.

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À I am grateful to Ethan Leib, Linda Ross Meyer, Austin Sarat, Jonathan Simon, and Bob Weisberg for comments and conversations about this paper. I sent a version of this paper to Professor Meyer prior to posting and she graciously conceded many of the points here, though she quite understandably retained most of her enthusiasm for the larger project of the “merciful state.” Professor Meyer also raised some interesting questions that I may address in later iterations of this reply.

[1] Forgiveness, Mercy, and Clemency, Austin Sarat & Nasser Hussain, eds., Stanford University Press, 2007.

[2] Dan Markel, Against Mercy, 88 Minn.L. Rev. 1421 (2004) (hereinafter “AM”).

[3] See generally Linda Ross Meyer, The Merciful State (hereinafter “TMS”), available at this link. Citations to TMS refer to the online version of the manuscript.

[4] TMS at 20.

[5] Markel, The Justice of Amnesty? Toward a theory of retributivism in recovering states, 49 U.

Toronto L. J. 389, 421-25 (1999); Markel, Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 Vanderbilt L. Rev. 2157, 2184-2191 (2001) (hereinafter “Markel (2001)”).

[7] See TMS at 20.

[8]

Id.

[9] See, e.g., AM at 1468.

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