Doing Justice to Mercy

Doing Justice to Mercy: Religion, Law, and Criminal Justice

Jonathan Rothchild
Matthew Myer Boulton
Kevin Jung
Copyright Date: 2007
Pages: 288
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  • Book Info
    Doing Justice to Mercy
    Book Description:

    It is often assumed that the law and religion address different spheres of human life. Religion and ethics articulate complex systems of moral reasoning that concern norms, deliberation of ends, cultivation of disposition, and transformation of moral agency. Law, in contrast, seeks to govern human conduct through procedural justice, rights, and public good. Doing Justice to Mercy challenges this assumption by presenting the reader with an urgent conversation between the law and religion that yields a constructive approach, both theoretically and practically, to the complex role of mercy in our legal process.

    Authored by legal practitioners, activists, and theorists in addition to theologians and ethicists, the essays collected here are informed by timeless principles, and yet they could not be timelier. The trend in sentencing moves toward an increased severity, and the number of incarcerated people in the United States is at an all-time high. In the half-decade since 9/11, moreover, homeland security has established itself as a permanent fixture in our lives. In this atmosphere, the current volume seeks initially to clarify how justice and mercy intertwine in relation to a number of issues, such as rehabilitation, the death penalty, domestic violence, and war crimes. Exploring the legal, philosophical, and theological grounds for mercy in our courts, the discussion then moves to the practical ways in which mercy may be implemented.

    Contributors:Marc Mauer, The Sentencing Project * Lois Gehr Livezey, McCormick Theological Seminary * Ernie Lewis, Public Advocate, Commonwealth of Kentucky * Jonathan Rothchild, Loyola Marymount University * Albert W. Alschuler, Northwestern University School of Law * David Scheffer, Northwestern University School of Law * David Little, Harvard Divinity School * Matthew Myer Boulton, Andover Newton Theological School * Mark Lewis Taylor, Princeton Theological Seminary * Sarah Coakley, Cambridge University * William Schweiker, University of Chicago Divinity School * Kevin Jung, College of William and Mary * Peter J. Paris, Princeton Theological Seminary * W. Clark Gilpin, University of Chicago Divinity School * William C. Placher, Wabash College

    eISBN: 978-0-8139-3422-8
    Subjects: Religion

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-x)
    W. Clark Gilpin
  4. Acknowledgments
    (pp. xi-xiv)
  5. Introduction
    (pp. 1-12)

    Breaches of law and the challenges of administering justice pervade and inform everyday human life. From domestic violence to corporate corruption, senseless hate crimes to the carnage of ethnic cleansing, a local homicide to an act of international terrorism—issues of crime and punishment deeply touch the lives of victims, off enders, and the rest of society.

    Recent events on both domestic and international fronts have underscored how pressing issues of crime and punishment are reawakening awareness and discussion, from the dinner table to the highest centers of government. The September 11 attacks and the subsequent war on terror and...

    • Race, Class, and the Development of Criminal Justice Policy
      (pp. 15-32)

      The profound racial disparities that permeate the criminal justice system are by now distressingly prevalent and well documented. The unprecedented rise in the prison population over the past three decades—a six-fold increase, leading to the incarceration of more than 2 million Americans—has been accompanied by widespread racial effects. The figures are well known, but shocking nonetheless: one of every eight black males in the 25–34 age group is locked up on any given day, and 32 percent of black males born today can expect to spend time in a state or federal prison if current trends continue.¹...

    • Complicity or Justice and Mercy? Sexual Violence Challenges, the Criminal Justice System, and the Churches
      (pp. 33-49)

      As I was initially contemplating this chapter from my sabbatical vantage point in Cambridge, Massachusetts, Cardinal Law of Boston first refused, then very reluctantly agreed, to authorize the reporting of the sexual abuse of children and youth by priests to legal authorities. Speaking out on this “crisis of the church,” he echoes the sensibilities of many church leaders who view the problem, the “wound” to the church, as a problem of too much publicity rather than as a profound, pervasive, destructive, and faithless habit of violation of the person—and the Gospel.¹ Like so many others, his primary loyalties are...

    • Echoes of Grace: From the Prison to the State House
      (pp. 50-62)

      I approach this essay on doing justice and mercy from two perspectives, that of a Christian who received an M. Div. degree from Vanderbilt some twenty-nine years ago, and that of a twenty-five-year state public defender. I am presently serving as the Kentucky Public Advocate, the chief administrator of a statewide public defender system, a role that finds me approaching public policy questions often utilizing both perspectives.

      Jesus said in Matthew 5:38–39 and 43–44 the following: “You have heard that they were told, ‘An eye for an eye, a tooth for a tooth.’ But what I tell you...

    • Recapturing the Good, Not Merely Measuring Harms: Rehabilitation, Restoration, and the Federal Sentencing Guidelines
      (pp. 63-91)

      As the essays in this book demonstrate, the current criminal justice system faces significant challenges: overcrowding, racial disparities, financial shortfalls, increases in juvenile inmates, and the collapse of families and communities of those incarcerated. These challenges impel critical reflections on the basic purposes of criminal punishment on both a theoretical and practical level. According to theUnited States Commission Guidelines Manual(November 2000), the four basic purposes of criminal punishment are deterrence, incapacitation, just punishment, and rehabilitation.¹ Each of these purposes has garnered extensive support, and debates among the different proponents have been polemical at times. Within the last decade,...

    • A Place for Mercy
      (pp. 92-100)

      In some situations, justice requires mitigating a wrongdoer’s punishment. Mitigation is a moral duty. In other situations, justice forbids mitigation. Any mitigation is improper. If these situations exhaust the field, mercy is an impossible virtue.¹ Mercy must be an act of grace, not duty. It is the paradigmatic example of supererogation.²

      To make room for mercy as a supererogatory act is to make room for inequality. If individuals and governments are morally obliged to treat like cases alike, supererogatory acts have no place. This essay considers whether the concept of justice is so expansive that it leaves no room for...

    • Why International Law Matters in God’s World
      (pp. 101-116)

      One of Isaiah’s prophecies against Judah intones, “Mankind will be brought low, everyone will be humbled” (Isa. 2:9). That prophecy bore truth in our lifetimes, on our watch. If you have difficulty imagining the reality of the Devil, or if you do not believe in the Devil, or of evil forces that undeniably exist, then take a walk with me.

      Imagine walking through a still-burning camp in the eastern Congo, near Goma, in August 2000, where scores of internally displaced persons have been burned alive in their tents or gunned down trying to escape—not an uncommon event in the...

    • Critical Response to David Scheffer
      (pp. 117-126)

      David Scheffer’s edifying essay illustrates in several ways the pertinence of international considerations to our discussion of justice and mercy.

      First, he calls attention to experiments like South Africa’s Truth and Reconciliation Commission, which are efforts to find “nonjudicial” means, as Scheffer refers to them, for handling crimes related to societies with an authoritarian past. Incidentally, of the various arguments usually given in support of such arrangements, which also include political and practical considerations, two of them illuminate with particular clarity the connection to the justice/mercy discussion.

      One argument contends that in situations where whole societies are caught up in...

    • Samaritan Justice: A Theology of “Mercy” and “Neighborhood”
      (pp. 129-144)

      In the United States today, perhaps the consummate “outsiders” are the ones, as we say, “on the inside.” The people in many respects most peripheral in American social and political life are those who live incarcerated in prisons and jails, at once outcast to the public perimeter and corralled together in “correctional centers.” As political subjects, they are (1) among the most disenfranchised, exiled from the political processes by which state power is determined and carried out, and (2) among the most thoroughly determined by those processes and that power. This stark asymmetry is acceptable to most citizens of the...

    • The Way of the Cross as Theatric of Counterterror
      (pp. 145-173)

      Since writing about systems of criminal justice and injustice inThe Executed God,one of that volume’s major notions, organized terror, has become more pertinent than I could have anticipated at that time. The book argued that U.S. practices of policing, imprisonment, and the death penalty form a system that disseminates terror among poor communities, and further, that this system often functions to reinforce exploitative patterns of political, economic, and social power. This terrorizing function, and its importance to U.S. public order, is hidden, for many people, behind the claims of moral legitimacy that police and other criminal justice officials...

    • Critical Response to Mark Lewis Taylor
      (pp. 174-180)

      Mark Taylor writes a very powerful and passionate essay, in which he has gone significantly beyond the central themes of his recent bookThe Executed God¹ by bringing the notion of “organized terror” in the American prison system into relation now to other forms of (so-called) “imperial” terror and reactions thereto. In what follows I shall be raising four specific questions about theadvisabilityof his particular strategies for critical response to the current prison system in the United States; as I do so, however, I hope it will be clear that I share with utter conviction Taylor’s horror at...

    • Criminal Justice and Responsible Mercy
      (pp. 181-205)

      The American public is increasingly aware of problems in the United States criminal justice system as well as the massive social ills—poverty, racism, abuse—that motivate and yet are concealed by the system. More and more individuals, especially young men from ethnic and racial minorities, populate the prison system. In 1999, 1.5 million children in the United States had at least one parent in prison. What is more, even those who complete their sentences are marked for life: background checks, employment problems, family difficulties, and the like. Cities and states continue to build prisons in the hope of stemming...

    • Fallibility and Fragility: A Reflection on Justice and Mercy
      (pp. 206-221)

      Niccolò Machiavelli writes: “[O]ne can say this generally of men: that they are ungrateful, fickle, pretenders and dissemblers, evaders of danger, eager for gain.”¹ To deal with this kind of human nature, he argues that a political ruler needs to know how to use force as well as laws, all according to necessity. He also advises that it is important for the ruler to appear merciful to win the hearts and minds of people, while the ruler should remain feared by people.² Such a seemingly dark assessment of human nature finds echoes in the political thought of many thinkers in...

    • Justice and Mercy: The Relation of Societal Norms and Empathic Feeling
      (pp. 222-230)

      The moral relationship between justice and mercy is analogous to the relationship between a morally good state and a morally good person. That is to say, justice is prior to mercy in the realm of practice. A morally good state is determined by morally good laws, which in turn provide the necessary conditions for the moral development of its citizens and, most important, the practice of justice by both individual citizens and the state. Of course, morally good laws are determined in large part by the moral quality of those who make the laws. In brief, justice pertains to objective...

    • Criminal Justice and the Law of Love: Reflections on the Public Theology of Reinhold Niebuhr
      (pp. 231-244)

      In a penetrating inquiry into the history of modern prison reform, the late Norval Morris, a legal scholar at the University of Chicago, asked us to confront the question of why prison conditions merit a society’s most serious consideration. Part of the answer, said Morris, “is to be found in the fact that the criminal justice system exercises the greatest power that a state can legally use against its citizens.” Consequently, the treatment of convicted criminals discloses the functioning norms of human decency and fairness, the protections of citizenship, and the restraints on the exercise of force that pervade the...

    • Critical Response to W. Clark Gilpin
      (pp. 245-250)

      We live in a country gone mad on sending people to prison. Consider some statistics. From the early twentieth century until the mid-1970s, the United States imprisoned about 110 people for every 100,000 of population. By the mid-1990s, the figure had risen to about 600 per 100,000. Comparable figures to that 600 would be 36 per 100,000 for Japan, from 50 to 120 for the countries of Western Europe, 230 for the famous “police state” of Singapore, and 368 for South Africa at the height of the crisis before the change to majority rule. Putting aside political prisoners or whole...

  8. Postscript
    (pp. 251-260)

    This volume has offered a feast of ideas and concerns about some of the most pressing issues our society now faces. It has given us a glimpse of the human face of suffering and the longing for justice and mercy in a harsh and violent world. The different perspectives have addressed many facets of justice and mercy in the criminal justice system.

    How can one possibly and properly conclude such a book? By the nature of the case, anything I write will not be enough. The contributors’ ideas, theories, arguments, facts, and figures would all need to be clarified, debated,...

  9. Bibliography
    (pp. 261-272)
  10. Notes on Contributors
    (pp. 273-276)
  11. Index
    (pp. 277-280)
  12. Back Matter
    (pp. 281-282)