Justice, Mercy, and Equality in Discretionary Criminal Justice Decision Making

Posted: 26 Jun 2020

Date Written: March 1, 2020


This essay examines whether, in exercising their discretion, criminal justice officials should do justice, grant mercy, and treat alleged or convicted offenders equally. Although it endorses doing justice, the essay maintains that officials should almost never reduce a just punishment simply to be merciful. Public officials are fiduciaries, and they ordinarily have no authority to make unmerited gifts. Sometimes, however, deciding not to inflict a just penalty can reflect the willingness of an entire society to forgive. That may be the case, for example, when truth and reconciliation commissions approve amnesties. The essay focuses on the teachings of Jesus Christ and questions some of them. It asks, for example, whether a modern chief executive would merit praise or condemnation if this executive followed Jesus’s example in the case of the woman taken in adultery. The essay also suggests that — unlike other officials — chief executives exercising their pardon power need not act affirmatively to treat like cases alike. A conclusion notes that it would have been out of character for Jesus Christ to refuse a plea for mercy. Nevertheless, few Christians have endorsed an implication of his willingness to forgive — the abolition of criminal punishment.

Keywords: criminal justice, mercy, equality, pardons

Suggested Citation

Alschuler, Albert W., Justice, Mercy, and Equality in Discretionary Criminal Justice Decision Making (March 1, 2020). Journal of Law and Religion, Vol. 35, No. 1, 2020, U of Chicago, Public Law Working Paper No. 749, Available at SSRN: https://ssrn.com/abstract=3634142

Albert W. Alschuler (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0730 (Fax)

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