The Difficulties of Democratic Mercy
In response to Dean Martha Minow’s 2014 Brennan Center Jorde Symposium Lecture, Forgiveness, Law, and Justice, 103 Calif. L. Rev. 1615 (2015), available here.
Dean Martha Minow’s wide-ranging and learned Jorde lecture Forgiveness, Law, and Justice is characteristic in its unstinting ambition. The lecture does not merely sweep in complex normative and empirical questions concerning the relationship of legal institutions and rules to a capaciously defined concept of “forgiveness.” It further reaches beyond the sublunary scholarly task of delimiting and describing. Unconfined to the desiccated philological minutia of a Casaubon, Dean Minow instead approaches her topic with dauntless optimism and eyes fixed firmly on empyrean-minded aspiration. To follow her argument is to be apprised of the possibility of a stronger loving world and to have one’s own parochial and reflexive skepticism—the coin of the realm in the law school workshop—put to shame.
Yet to speak in aspirational terms should not mean dispensing with the questions of how to attain a given vision of justice or to diagnose with precision the barriers to its realization. Hence, while I share Dean Minow’s large ambition for law as a catalyst for interpersonal and social reforms, my Essay here will focus narrowly on the impediments to that ambition. My goal here is modest along several dimensions. To begin with, it is narrow in conceptual and geographical terms. Although Dean Minow anchors her topic with a parsimonious definition of forgiveness as “a conscious, deliberate decision to forgo rightful grounds for grievance against those who have committed a wrong or harm,” her discussion overflows that definition to touch on several related, but nonetheless distinct, normatively infused concepts. In the course of her exegesis, moreover, she ranges through geographically disparate examples that include transitional justice mechanisms in South Africa, Liberia, and Sierra Leone; the exercise of prosecutorial discretion in the International Criminal Court; the treatment of former child soldiers; and the discharge of sovereign debt obligations under the so-called “odious debt” doctrine.
Eschewing that conceptual and geographic breadth, I will focus on only one of the concepts that Dean Minow’s seriatim conjures, and circumscribe my reach to the vulgar demotic of American law. More specifically, this Essay concentrates upon our domestic experience with what Dean Minow’s colleague Professor Carol Steiker terms “legal institutions of mercy,” institutions that have either wholesale or retail power to mitigate civil or criminal liability. It examines the conditions under which democratic institutions can exercise some form of mercy. The simple claim of this Essay is that our own rich experience under the U.S. Constitution suggests it is extraordinarily difficult to institutionalize such official forbearance—especially on democratic soil—and especially when our political economy, in its superfluously punitive modalities, generates the need for mercy. The American experience points toward factors suggestive of a causal link between the democratic pedigree of institutions and resistance to the legal instantiation of mercy. Rather than seeking redemptive reforms through democratic process, I suggest, the institutional installation of merciful discretion often requires a dispensation from, and limits to, the otherwise democratic order.
My response proceeds in three steps. I begin by offering some analytic clarification by disentangling three distinct concepts at work across Dean Minow’s examples—forgiveness, mercy, and excuse—and by showing how the law can play different functions depending on which of these normative concepts is at stake. I next explain why a domestic focus, as opposed to the international lens that Dean Minow employs, may reap dividends for her project. The third—and most substantial—element of the Essay examines the operation of mercy in the domestic domain with an eye to understanding why its dispensation is so impoverished. I conclude by pointing to the nettlesome trade-offs, most importantly between democracy and mercy, that Dean Minow’s proposals invite—trade-offs that, in my view, admit of no easy solution.