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Against Mercy

60 Pages Posted: 27 May 2003  

Dan Markel

Florida State University College of Law (Deceased)

Abstract

The standard trope in the literature on retributive theory is that mercy serves as an unwelcome interruption of the narrative between crime and punishment. Underlying this theme is the purportedly retributivist notion that the criminal law and its institutions should impose some form of divine or poetic justice for wrongdoing of all different kinds. On this view, the exercise of mercy works a simple failure of justice. But once retribution is better understood - not as revenge or retaliation but as a complex institutional practice arising from and enforcing liberal legal norms of democratic pedigree - its relationship to mercy requires reexamination. That reexamination reveals previously unanticipated problems about the difficulties associated with democratically authorized sites for mercy. The unsettling dimensions of this tension have not been sufficiently appreciated by previous retributivist critiques. Importantly, the retributivist case against mercy still endures - not because mercy is a failure of justice (qua just deserts), but because it is a failure of equality. This realization suggests robust and surprising implications for the responsible design of attractive criminal justice institutions.

Keywords: Retribution, retributivism, mercy, philosophy of punishment

Suggested Citation

Markel, Dan, Against Mercy. Minnesota Law Review, Vol. 88, 2004. Available at SSRN: https://ssrn.com/abstract=392880 or http://dx.doi.org/10.2139/ssrn.392880

Dan Markel (Contact Author)

Florida State University College of Law (Deceased)

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