Mercy in Extremis, In-Group Bias, and Stranger Blindness

59 Pages Posted: 1 Mar 2024 Last revised: 4 Mar 2024

See all articles by Josh Bowers

Josh Bowers

University of Virginia School of Law

Date Written: February 28, 2024

Abstract

Our perceptions of what we owe each other turn somewhat on whether we consider “another” to be “an other”—a stranger and not a friend. In this essay, I examine the pronounced role that such in-group biases play in two distinct contexts. First, in a legal order, officials tend to prioritize the norms and forms of the profession. This institutional pride generates a lack of understanding for the actor or approach that operates beyond the bounds of the criminal legal system’s binary rules. To the law enforcer, all becomes law and outlaw where the outlaw is a threat that must be neutered by punishment. Second, in extremis, individuals fear outsiders and treat them, thereafter, with apathy or even outright animosity and violence. In each context, in-group biases challenge epistemic capacities to determine appropriately when mercy and care are warranted.

To illustrate the difficulty, I interweave three case studies—one contemporary, one biblical, and one literary. I focus principally on tragic events at Memorial Medical Center in New Orleans where, in the aftermath of Hurricane Katrina, hospital staff likely euthanized acutely ill patients. I then draw upon “The Parable of the Good Samaritan” and Cormac McCarthy’s post-apocalyptic masterpiece, THE ROAD, to inform my reading of the murder case against a Memorial doctor. I argue that it is not obvious who at the medical center failed to be sufficiently “other”-regarding and, in any event, the criminal legal system is particularly ill-equipped to address the moral complexities of actions (and inactions) undertaken in extreme circumstances. I conclude that the grand jury therefore did the right thing when it relied upon something like a “presumption of mercy” to refuse to indict the doctor.

Suggested Citation

Bowers, Josh, Mercy in Extremis, In-Group Bias, and Stranger Blindness (February 28, 2024). Texas Law Review, Forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2024-25, Available at SSRN: https://ssrn.com/abstract=4742126

Josh Bowers (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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