The concepts of justice and mercy hold a stoic position in human culture, having been preached about theologically in just about every major religion. The understanding of these concepts vary and depend on the context of usage, so for this essay it becomes imperative to lay the framework for what these concepts are interpreted as before diving into the relationship between the two.
The English definition of ‘mercy’ (Oxford English Dictionary) determines it to be the compassion that one may show to someone under their power, the caveat being that the person being given mercy is not inherently deserving of forbearance.
While justice can be classified four different ways (Maiese & Burgess, 2003), the two converse facets to the idea are retributive justice and reformative/restorative justice. Retributive justice refers to punitive reactions to acts considered socially unacceptable, and reformative justice is concerned with the rehabilitation of an individual in order to integrate with society. Reformative justice is more closely aligned with the idea of mercy as there is no inherently harm done to the socially deviant individual. The forbearance given to the individual here would be the patience required as the person changes to better coalesce within societal norms.
Under this paradigm, this essay would attempt to show that the punitive efforts of retributive justice do not supersede the need for mercy in the case of societal incongruences. This will be demonstrated with 3 constructives:
i. A look at the result of direct ramifications, contrasting crime and subsequent repercussions in the middle ages with the modern justice system.
ii. The changing legal framework and the adaptation of social norms.
iii. The merits of forgiveness and the profound impact it may have.
What happens under a retributive system?
It would not be unfair to argue that life in the modern age is more comfortable and safe than in medieval times. People have less proclivity for violent discourse and engagements such as duels and ‘justified’ fights have lost acceptance in society. A large part of this shift in dynamic within judicial paradigms can be attributed to the more restorative and merciful nature of prison systems in the modern era. While prison does not carry the same forgiveness as an acquittal, it focuses on the prisoner themselves and carries programs to rehabilitate the given individual which are explored later in this essay. The possibility of the prisoner potentially leading a normal life in the future following their remediation is more merciful than the retributive method of dealing with a criminal — creating and exacerbating the prisoner’s suffering.
A caveat is that the system even today is not perfect. According to a study by The Sentencing Project from 2018, 1 in 7 people is serving a life sentence. The dichotomy of the modern prison system exists wherein some may be rehabilitated while others are deemed a ‘lost cause’. The idea behind the latter is that these people need to be separated from society, and is done with the intention of protecting the populace as opposed to intending to better the criminal. Despite this, it proves to be a more effective method of dealing with deviants than the punitive and often barbaric methods of the guillotine and others during the medieval era.
The widely accepted notion regarding the state of the middle ages is that crime ran rampant and was met with harsh punishment (Butler, 2020). A large part of this crime is attributed to theft motivated primarily by famine and hardship faced by people at a grassroots level. Butler cites Michel Foucault’s Discipline and Punishment: the Birth of the Prison to indicate the worldview on which the judicial system of this era operated — the ideology of ‘might makes right’. The idea is that an oppressive monarch was most successful in fending off insurrection and would be more likely to maintain hegemony if by fear. This is substantiated by the fact that executions proliferated vehemently during and after the 15th century, corresponding to the dire conditions of peasants and other such folk.
What can be inferred from this is that fear is not a deterrent in keeping people from committing socially unacceptable acts. Especially if a crime is committed to sustain oneself such as theft of food, a person would be more likely to roll the dice with the hope of not getting caught as opposed to definitely facing death owing to their circumstances. The landscape of the pre-trial system was also relatively arbitrary, with convictions meted based on accusatory depositions that lack a proper foundation (Gaskill, 1998).
Public executions found themselves embargoed in the 19th century, owing to the demeanour of crowds and the clamouring of reformists who rioted in the 16th century (Garland, 1992). Prisons became more prevalent as a means of punishment, but this was not necessarily for the well-being of the incarcerated. Going back to Foucault, the book makes the case that the prison system was also not initially simply a humanitarian measure, but was a tool to either hold prisoners until their trial or a different kind of cruelty involving the confining of a person to a single space (Schwan & Shapiro, 2011). From this, it becomes apparent that there would be no resources for an incarcerated person to better themselves and reenter society. All of this created an atmosphere wherein a criminal had no opportunity to redeem themselves and ultimately led to the birth of a savage era in human history.
Prisons in the modern era do facilitate rehabilitation programs such as Cognitive Behavioural Therapy (CBT) and Substance Use Disorder Treatment (SUDT) funded by the state within the California Department of Corrections and Rehabilitation (CDCR) (Peterson, et al., 2017). What these programs do is equip a prisoner with skills such as the ability to write, tools that would aid employment following the serving of the sentence, and therapy to help the mentally ill. These programs help in reintegrating the prisoners as an asset as well as ensuring that they would be able to earn a livelihood and remain self-sufficient.
It was found that employment after incarceration and access to jobs that pay greater than the minimum wage of a country lead to lesser rates of recidivism and benefit the former offender (Clark, 2004). Additionally, the judge and defence council have a responsibility to inform a person of the collateral implications of a guilty plea, and groups such as the Center for Prison Reform (CPR) aim to better the system for former convicts.
According to Peterson’s report, the infrastructure for the same is lacking in that the rate of recidivism in 2012–13 was 46% but the existence of such an option is a largely beneficial alternative to spending a lifetime in prison. Conversely, it is to be noted that 42% of federal prisoners in the USA were serving sentences for drug related crimes in a study of prison demographics from 1998 to 2010 (Romano, 2015). These numbers are drawn from a time during which states such as Colorado, Nevada, California, and others began to decriminalise marijuana.
This paradigm shift accounts for another factor that merciful reactions to crimes can have — the opportunity to revisit verdicts based on the given political landscape.
How do changing tides in public notions impact justice?
As times progress, opinions on behaviours that may be considered unacceptable in a given period of time inevitably change. The two most prominent examples of these are the acceptance of homosexuality within the institution of marriage and the decriminalisation of marijuana.
Acceptance of Homosexuality
The state of governing of the past was one of a puritanical nature, with an immense disdain of homosexuality that led to its criminalisation. While laws regarding male homosexuality were biblical and often were writ adhering to the wording of the same, the mid 17th century saw the inclusion of female homosexuality to the law that criminalised it, proposed by John Cotton (Crandell, 2013). Along with these draconian laws came the threat of capital punishment and other measures such as chemical castration. Only in 1973 was homosexuality declassified as a mental disorder (Spitzer, 1981), and the dissemination of acceptance for the same was a slow process that has not been fully imbued in the entirety of society even today.
There have been changes in policy, however, that lead to the destigmatisation of queer behaviour. First, contending with expunging records of the past is the amendment dubbed the ‘Turing Law’ — wherein deceased persons who were convicted of engaging in homosexual activities were pardoned (BBC, 2016). This led to the revitalisation of legacies of several people including the codebreaker Alan Turing, who aided in the interception of messages on behalf of the Allied forces during the second World War.
The legalisation of gay marriage was also a large stepping stone for the global community, with Denmark being the first to recognise same-sex relationships in 1989 and grant the couples the same rights as heterosexual couples barring the adoption of children (The New York Times, 1989). It was not until 2001 when the Netherlands became the first country to legally establish the acceptance of same-sex relationships within the institution of marriage (CBC, 2009).
Decriminalisation of Marijuana
Public opinion of marijuana in the USA has been shifting to be more tolerant of recreational consumption, and has been since the 1990s. Marijuana is legal as a source of recreation in 29 states in the USA, with Vermont being the first to legalise the same by means of legislation in 2018 (Business Insider, 2018).
What gets called into question are convictions of possession and usage that would be legal in the status quo and the expungement of these records. This is especially because the number of individuals incarcerated owing to convictions for drug offenses increased from 40,900 people in 1980 to 488,400 people in 2014 (Romano, 2015). The Uniform Crime Reporting Program (UCR) by the Federal Bureau of Investigation (FBI) showed that in 2018, 37% of arrests made for drug related offenses were related to possession of marijuana (James & Sacco, 2020).
In 2019, the US Government implemented the Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2019 that aims to efface the records of individuals convicted for the possession of marijuana that would be legal under current policies (James & Sacco, 2020). The year 2020 saw an increase in applications for the expunging of criminal records and continues to be on the rise (Collateral Consequences Resource Center, 2021).
In the aforementioned case studies, capital punishment and other means of retribution leave no leeway for adaptation of repentance in new worldviews. Alan Turing was given a choice between jail and chemical castration and treatment as a part of his sentencing for being homosexual, and chose the latter. This resulted in impotence and the development of breasts, as well an onset of depression following which he may have committed suicide (Peter Tatchell Foundation, 2014). The permanent impact this conviction had on his life for a behaviour that is considered normal today is abhorrent and was preventable. Had it been a prison sentence or some form of rehabilitation, he would not have had to live an uncomfortable and miserable life until his demise.
The permanence of retribution is especially harmful considering that it is a reactionary method of dealing with delinquency. It chooses to inflict harm on the individual instead of understanding and potentially accepting why a person did what they did. It hinges on a luddite attitude that believes that the fear of a punishment would deter an individual from committing a crime which, as discussed earlier, did not prove to help when it was at its most rampant in the middle ages.
Restoration aims to help rather than hurt, and this access to resources accompanied by the power of lenience is more effective than the forcing of an acquiescent attitude on criminals.
What impact does forgiveness have on a person?
Mercy and forgiveness may seem like an invitation for a person to do as they please, but can act as a mental dissuasion from further wrongdoing. The reception of forgiveness is seen to impede recidivism and assuage any residual feelings of guilt in delinquents (Jenkins, 2019).
The notion of a ‘lost cause’ stems from the belief that a person’s behaviour is in their nature as opposed to a result of their circumstances. Empiricists are of the belief that at birth, a person’s mind is a clean slate that has experiences and behaviours ingrained at a later stage, while Nativists are of the belief that a person’s demeanour is hereditary (McLeod, 2007).
The debate is ongoing and will likely not be quelled, but if the nativists are to be taken at their word this leaves no space for a person to understand that what they have done may be wrong and can be rectified. This philosophy outlines a pessimistic attitude towards human behaviour, which has been shown to be dynamic and adapt based on a person’s inherent beliefs and ideals (Michie & West, 2013). Rehabilitation facilities such as the ones mentioned above in California aim to change the cognitive function of prisoners so that they may one day contribute to society as a productive member.
With the groundwork regarding acceptance of former convicts changing to be more tolerant, deviant people stand a better chance of leading a normal and quality life after prison.
In conclusion, retributive methods of dealing with a crime are ineffective and unnecessarily harsh. The corollary of this is that what occurs is the genesis of a society that is brutal and values nothing save what gets them by in the tyrannical landscape. People change and with them so do the laws, so the constancy of retributive punishment cannot be corrected when the tides turn and can result in the razing of a person’s life and identity. Lastly, a person deserves the chance to better themselves and realise that what they did was not in accordance with the agreed upon conditions of society in the status quo. The miasma of their actions must not taint their chance for retribution.
Violence begets violence, and mercy sows the seeds for a better future.
