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JUSTICE, MERCY, AND EQUALITY IN DISCRETIONARY CRIMINAL JUSTICE DECISION MAKING
Published online by Cambridge University Press: 27 April 2020
Abstract
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.
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- Copyright © Center for the Study of Law and Religion at Emory University 2020
Footnotes
This essay was presented in draft at a symposium convened at the Inner Temple, London, in October 2018 and will be published in Mark Hill, Norman Doe, Richard Helmholz, and John Witte, Jr., eds., Christianity and Criminal Law (Abingdon: Routledge, 2020).
References
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29 United States v. Wilson, 32 U.S. 150, 160 (1833).
30 Biddle v. Perovich, 274 U.S. 480, 486 (1927).
31 Herrera v. Collins, 506 U.S. 390, 412 (1993).
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40 Luke 6:37.
41 Luke 23:34.
42 Matthew 5:38–42.
43 Exodus 21:23–25; Leviticus 24:19–20; Deuteronomy 19:21.
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50 Hebrews 10:10.
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52 U.S. Constitution. art II, § 2, cl. 1 (“[The President] shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”).
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62 The nearest they have come seems to be Matthew 18:15–17 (approving the shunning of persistent, unrepentant sinners) and Matthew 12:30–32 (declaring blasphemy against the Holy Spirit unforgivable).
63 Luke 6:37.