The Merciful State

Abstract:     
This article challenges the view, most recently articulated by Dan Markel, that merciful mitigation of punishment by state actors is contrary to principles of retributivism, equality, and democracy. In addition to providing a theoretical response to these arguments, the article points out that our justice system is (and should be) riddled with mercy, and when mercy is given out of equity, relationships of allegiance, peace-making, or compassion, it may ground and confirm responsibility and community - not undermine them. Concluding that a theoretical challenge to mercy fails, the article examines many instances of clemency and pardon to begin a more contextual, case-based look at when mercy is appropriate and when it is not.

Keywords: mercy, grace, pardon, capital punishment, forgiveness, apology, clemency, mitigation, sympathy, compassion, retribution, punishment, Heidegger, Kant, allegiance, grace, equity

JEL Classification: K14

Accepted Paper Series