Mercy by the Thousands, Denial by the Dozen
When a government boasts of human potential while rejecting 6,000 pleas for clemency, the impartial spectator is bound to ask whose interests, and whose feelings, are truly being served.
The spectacle is simply described: an administration proclaims that, for 250 years, its nation has believed in the potential of its people; its counsellors then toy with a grand gesture of 250 pardons to mark a patriotic anniversary; and the magistrate, when the moment arrives, denies about 6,000 applications for clemency instead. At a separate feast of wit and vanity, he jests about the press and future terms in office. Here are two theatres of power: one where mercy is counted, and another where applause is counted. The question for a philosopher of morals is not how cleverly the lines are delivered, but how the unseen costs of this drama are distributed among those who never attend the performance.
In the work I once published on the wealth of nations, I urged that we trace every regulation to those who quietly pay for it. The benefits, I there observed, are usually visible and concentrated; the burdens, invisible and dispersed. So it is with a policy of near-universal refusal. The satisfaction is direct and palpable for those who desire a stern spectacle of justice—the sense that order is asserted, that crime meets iron consequence. The cost falls, case by case, upon prisoners, upon their families, upon neighbourhoods already poor in fortune, who must endure years of diminished earnings, broken households, and hardened resentments. No account is kept of these losses, because they are scattered; yet they are as real as any tax.
In my book on moral sentiments, I argued that we judge conduct by imagining an impartial spectator, well informed yet disinterested, looking on. That spectator, hearing that 6,000 individuals petitioned for mercy and that almost all were dismissed together, would wish to know more than the number. Were these petitions considered with care, as supplications from fellow-creatures? Were reasons particular to each case weighed, or were they treated as a heap of paper to be swept from the table? To deny mercy may sometimes be just; to deny it in bulk, while promising belief in human potential, approaches a kind of moral bookkeeping in which mercy is the entry least likely to be posted.
I have never thought that government ought to be a shopkeeper in pardons, distributing indulgence by caprice or favour. The exact administration of justice is one of its chief duties, and punishment, once justly pronounced, ought not lightly to be remitted. Yet justice, if it wholly excludes mercy, degenerates into something that men obey from fear but do not respect from the heart. A prudent clemency policy is not a lottery of miracles, but a sober institution: it should encourage amendment of life, reward good behaviour, and correct those sentences that, by change of manners or new knowledge, have become manifestly excessive. When mercy is reduced to pageantry—floated as a patriotic spectacle, then withdrawn—the rules by which citizens might rationally strive to deserve it are left obscure.
We must, therefore, attend to incentives. Men in power respond, not to sermons on virtue, but to the rewards actually within their view. A public display of severity, especially when accompanied by lively contests with the press, may gratify a portion of the electorate and confirm a reputation for strength. The labouring poor, the obscure convict, offer no equivalent return. Their gratitude is quiet, their votes uncertain, their stories rarely reach a dinner of correspondents. Where the praise of firmness is immediate and the praise of mercy doubtful, self-love, operating under weak restraints, will incline the magistrate to the former. A system that relies upon his unusual generosity, in defiance of these incentives, is a system designed to fail.
One might object that such denials uphold the rule of law, and that to grant many pardons would be to insult the judges and juries who first imposed these sentences. But the rule of law is not the rule of sentences past; it is the rule of known and stable procedures, among which a constitutional power of clemency is often numbered. When exercised according to clear principles, that power completes the system: it allows the community to correct its own harshness without undermining the courts. When held out as a glittering possibility and then withheld from thousands, it instead teaches that justice is rigid when it should be humane, and flexible only when it is theatrically convenient.
In earlier days I remarked, once only, that men, seeking their own security and gain, may sometimes be led by an invisible hand to promote the public interest. Yet there is no such benign guidance where the rewards of mercy are diffused and the rewards of harshness concentrated in political renown. The impartial spectator, surveying an administration that praises potential while closing its ears to 6,000 pleas, will not find much praise-worthiness in that contrast. He will see instead that the great chess-board of human society has been arranged to exhibit power rather than to repair injustice; and he will quietly mark, in his own ledger, a growing deficit of trust.
From the works cited
- The Theory of Moral Sentiments — Judge conduct by the impartial spectator: what would a well-informed, disinterested observer feel about this action? Praise-worthiness matters more than praise; to be loved without being lovely is worth nothing, and to be blamed unjustly stings less than to deserve blame.
- An Inquiry into the Nature and Causes of the Wealth of Nations — Trace every policy to its effect on the price system and ask who bears the unseen cost: benefits are visible and concentrated, costs are diffuse and quiet. Find the hidden payer before pronouncing judgment.
- An Inquiry into the Nature and Causes of the Wealth of Nations — The state has real duties — defence, exact administration of justice, and public works and institutions that profit society but could never repay a private undertaker — and they must be paid for. The question is always comparative competence in the particular case, never laissez-faire dogma.