Equity, Not Mercy

The New Philosophy of Criminal Law (Flanders & Hoskins, eds. 2016)

27 Pages Posted: 20 Feb 2016

See all articles by Mary Sigler

Mary Sigler

Arizona State University - College of Law

Date Written: January 15, 2015

Abstract

In a variety of criminal justice settings, the term mercy is used broadly to refer to almost any instance of remitting the harshness of punishment. Although unobjectionable as a colloquial matter, this indiscriminate usage is conceptually problematic. Mercy understood in this broad sense distorts at least two concepts that are essential to our moral life. Specifically, the broad use of mercy denies us the conceptual resources to assess the distinctive operation of traditional mercy — an act of grace that cancels or mitigates what is due out of compassion or concern for the recipient. Perhaps more important, broad mercy effectively diminishes the concept of justice, alleviating the pressure it would otherwise exert to redress claims of right. I first consider the concept of mercy in both its traditional and broad senses. I then turn to equity as an alternative. Equity, like mercy, operates within the realm of discretion; but unlike mercy, equity aims at justice. In the legal context, equitable judgment represents a form of guided discretion in which decision making is both searchingly particular and constrained by authoritative standards of justice. A careful analysis of the concept of discretion underscores both the promise and pitfalls of the discretion with which we empower actors in the criminal justice process. Equity, not mercy, should structure their deliberations.

Suggested Citation

Sigler, Mary, Equity, Not Mercy (January 15, 2015). The New Philosophy of Criminal Law (Flanders & Hoskins, eds. 2016), Available at SSRN: https://ssrn.com/abstract=2734357

Mary Sigler (Contact Author)

Arizona State University - College of Law

111 E. Taylor Street
Phoenix, AZ 85004
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
172
Abstract Views
1,049
Rank
314,422
PlumX Metrics