Hurd, in her article The Morality of Mercy, discusses whether retributivists are wrong in dismissing mercy and whether mercy has a moral purpose. Her main questions that guide this discussion are 1) whether instances of mercy are actually mercy in a moral sense, and 2) whether these instances can be defended on moral grounds (389). Hurd preliminarily mentions that retributivists are correct in their instincts to dismiss instances of “mercy” on ground that it is guided by immoral or amoral motives. Hurd divides her discussion about mercy in three parts. Part one is a preliminary discussion of mercy, definitions, and common retributivist perspective on mercy. Part two is a discussion of clemency of officials and why mercy might be attractive in court. Part three is a discussion of mercy in private contexts, particularly among friends, family, or loved ones.
Hurd mentions how retributivists generally dismiss mercy because they believe that the motivations of mercy are confused with ideals of “religion, literature, opera, and the movie industry [that] portray acts of mercy as laudable instances of institutional justice, moral goodness, or personal virtue” (390). If this is true, the motivations of mercy would be unrelated to the goals of the court and the criminal justice system as a whole and, according to retributivists, so would mercy itself be unrelated and arbitrary to the purposes of the court. Hurd notes how she actually shares in this practical view:
I must confess that I have always shared the retributivist’s conviction that it is confused to try to defend mercy in any of its institutional forms-as a gubernatorial pardon, an instance of jury nullification, an act of judicial leniency, or a prosecutorial wink and a nod-and I have even been skeptical of the defensibility of decisions by individuals (and potential plaintiffs) to waive secondary obligations of repair and to refuse to press demands for corrective justice. What could possibly be good about suspending justice? What could possibly be virtuous about doing what is, ex hypothesi, unjust-that is, undeserved? How could moral strength lie in indulging, tolerating, or forgiving another’s weakness, laziness, or viciousness? (Hurd 391).
Despite these concerns, Hurd does not extend these practical doubts about the role of mercy in court with the inherent and personal value of mercy. She notes that there is an inherent moral attraction of mercy (391).
In her first section, Hurd notes how mercy has mens rea and actus rea components. It is the actus rea component that is specifically relevant to the discussion of the article: the act of “the waiving of a debt or the suspension of a deserved punishment” (394). Nevertheless, Hurd goes on to discuss examples of legitimate and illegitimate forms of mercy in terms of mens rea. In general, it seems that if there are other existing reasons to waive a debt or suspend punishment then this is not a legitimate form of mercy. For example, a governor who was bribed to pardon a prisoner did not really show “mercy” to him (394). A woman who, out of fear, refused to testify against her abusive husband did not really extend “mercy” to him (394). Therefore, the mens rea can substantially affect the legitimacy of mercy.
In the next section, Hurd discusses how mercy might manifest in a given court and whether mercy has a role in the criminal justice system given the fact that there are many reasons to oppose the practicality of mercy. Hurd notes how instances of “mercy” in court are not legitimate instances of mercy because it is not for court officials to give mercy. Judges do not have the right nor the standing to waive deserved punishment because they were not the ones wronged: only the victims — those who were wronged — have this right (398–399). In other words, it is, by moral and legal standards, the court and the judge to rule according to desert and according to the facts presented. Hurd then goes through several examples of why this is the case and why some instances of apparent mercy are not mercy but instead consistent with law officials’ obligation to justice. The first example is a case in which officials limit the defendant’s punishment or pardon them altogether for lack of evidence. A second example would be a case in which officials use their discretion in light of laws that are unfit to apply to specific cases. A third example would be where officials use their discretion and recognize cases where the defendant has “suffered enough” (Hurd 400). Specific examples of this include 1) a man who killed her dying wife because he couldn’t stand to see her dying 2) a person who killed their best friend while drunk driving 3) the defendant whose trial has, for whatever reason, been postponed for an unreasonable amount of time and they’ve spent a lot of time in jail already or 4) a mother who killed her child because of postpartum depression (Ibid). All of these cases are not examples of mercy but rather justice — these officials are simply doing their job correctly and remaining consistent with the “innocent until proven guilty” clause.
Lastly the third section is a discussion of interpersonal cases of mercy. Hurd notes that the question of this section circulates around the question of “whether it is ever morally laudable, or even morally neutral, to” show mercy to those people who have wronged them when they do have a right and standing to do so (408). Just because someone has the right to do something doesn’t mean that that thing is morally acceptable or morally praiseworthy (407–08). There are many reasons for mercy to be praiseworthy and Hurd goes through a list beginning with a lesson from her mom about how “those who do us wrong are ‘more to be pitied than blamed’” (409). Secondly, there is an appeal to understand wrongdoers as equals (410). There are three reasons why this is significant. 1) there is a principle of reciprocity. 2) there is an appeal to the principle of equal treatment. 3) there is an appeal to the value of self-forgiveness, i.e., when some person wrongs you (in a private sense, not in a criminal sense) you’re able to see that thing that they did and look into yourself and see how you also may be susceptible to wrong in a similar way and see the value of forgiveness in that sense (410- 412). It might be the case that mercy is only really seen as valuable because we confuse it with other morally worthy things such as 1) someone simply doing something that is hard 2) appeals to being Jesus-like and so on.
Hurd ends this discussion by pointing out how confusing mercy is and how difficult it is to claim any blanketed statement on mercy as a whole as retributivists do. Though they are correct in claiming that mercy really shouldn’t have a place in the criminal justice system, they are wrong to assume it has no psychological, cultural, interpersonal, or moral value (421).
Hurd, Heidi M., The Morality of Mercy (2007). Ohio State Journal of Criminal Law, Vol. 4, 2007, Available at SSRN: https://ssrn.com/abstract=2612185