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Retribution, Atonement, Mercy, Death penalty, Capital punishment, Mass commutation, Theories of mercy


Criminal Law | Criminal Procedure


Is it a morally permissible exercise of mercy for a governor to commute the death sentences of everyone on a state's death row, as Governor Ryan recently did in Illinois? I distinguish three different theories of mercy. The first two theories locate mercy within a theory of punishment as retribution. The first theory treats mercy as a means by which to achieve equity. As such, this theory is not really a theory of mercy; it is instead a theory of justice. The second theory treats mercy as a genuine virtue independent of justice. In particular, mercy is understood as an imperfect obligation. But such a theory cannot, I argue, justify mass commutations. Mercy so understood comes at the cost of doing justice. As such, at some point short of the last commutation the demands of mercy must yield to those of justice. The third theory, in contrast to the first two, locates mercy within a theory of punishment as atonement, not in relationship to a theory of punishment as retribution. This theory of mercy, which treats mercy as a means by which to preserve the possibility of eventual atonement between the offender and the family of the victim, can, I suggest, provide a plausible and morally attractive basis for permitting, though not requiring, the commutation in the name of mercy of the death sentences of every inmate on death row.

Publication Citation

Published in: North Carolina Law Review, vol. 82, no. 4 (May 2004).