Mercy on Trial: What it Means to Stop an Execution

Vol. 16 No.1 (January 2006), pp.81-83

MERCY ON TRIAL: WHAT IT MEANS TO STOP AN EXECUTION, by Austin Sarat. Princeton and Oxford: Princeton University Press, 2005. 352pp. Hardback. $29.95/£18.95. ISBN: 0691121400.

Reviewed by Edward Kent, Department of Philosophy, Brooklyn College, CUNY.

E-mail: ekent [at] brooklyn.cuny.edu

George Ryan, Governor of Illinois (later convicted for corruption while serving in an earlier political office), startled both proponents and opponents of capital punishment when he pardoned 4 and granted clemency to the remaining 167 Illinois prisoners on death row shortly before he left office in January, 2003. Opponents of capital punishment viewed Ryan as a hero in support of their cause; proponents saw his action as opening up a nest of worms and to be condemned as a travesty of justice.

Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College, is author, co-author, editor of more than fifty books, including WHEN THE STATE KILLS and LAW, VIOLENCE, AND THE POSSIBILITY OF JUSTICE (both Princeton). In the present volume he explores the subtle difference between granting clemency in capital cases to avoid miscarriages of justice (which seems to have been the Ryan justification), as opposed to the older notion of clemency as an act of mercy (which has gone out of fashion in the U.S. with the cynical exploitation by politicians in recent decades of the well stoked boiler of revenge as the primary justification).

Sarat makes the central point through his six chapters of text (162 pp.) that mercy is an inherently disorderly concept, not readily shaped by rules and, thus, difficult to frame within a legal context as a guide for administrative clemency. These chapters – some expansions of earlier essays – respectively explore: 1) the decline in clemency decisions with the rise in the U.S. of the victims’ rights movement and retributivism that have “forced rejection of mercy and compassion;” 2) the resistance to gubernatorial clemency reflected in three case studies in which clemency was considered scandalous; 3) the William Haines’ critique of the Ryan action as a “raw exercise of power against the law itself;” 4) the recent rejection of rehabilitation in favor of retribution as the primary aim of punishment under the aegis of the Rehnquist Court; 5) a reexamination of Ryan’s own justification for clemency “within a victim centered political and legal environment;” 6) the current precarious state of clemency which places “mercy on trial.”

For those of us who deplore the death penalty, now almost uniquely practiced in the United States among civilized nations, Sarat’s book illuminates and highlights what one can fairly characterize as a degenerating American religio-political culture. It is a culture that glorifies revenge and retributive killing with ironic claims of religious authorization for barbaric practices deriving from ancient religious traditions [*82] – particularly the notorious lex talionis, first formulated in the commercial code of the Babylonian King, Hammurabi, and based on his assumption that his gods despised mankind and, therefore, had to be placated by pleasing sacrifices, including executions of wrongdoers in measure with their capital crimes (roughly dated in the 17 century BCE by recent scholarly assessments). Sarat’s lack of attention to such theological roots and their manifest revocations of the long-standing rabinical and Christian traditions, which have deplored the death penalty as being either a justified or practical mode of punishment, would be my only criticism of his useful explorations here: “Vengeance is mine, sayeth the Lord!” “Thou shalt not kill!” Capital punishment is inherently aberrant, and mercy is not the only or even, perhaps, the primary consideration that justifies its abolition.

One cannot help but feel some sympathy for Ryan – trained as a pharmacist and not as a lawyer – as he stumbled through the death penalty thickets. Obviously he was troubled by the discovery that at least 13 innocent persons had ended up on Illinois death rows. – more than the number actually executed since the death penalty had been revived in 1976 – and that he, himself, had nearly allowed the execution of an innocent retarded man, Andrew Porter, by his failure to grant him clemency. It was not an act of mercy, but rather a determination that the penalty should not be imposed as a consequence of miscarriages of justice upon innocents, that led Ryan to grant mass clemency. It is useful to have clearly in mind the fact that an act of clemency is not necessarily an act of mercy. However, this fact is disconcerting, as it suggests that clemency – or the lack of it – may all too frequently be a political act, possibly more determined by the granter’s private interests than those either of the beneficiary or society at large. The lesson here is that punishment – and particularly its most deadly allowable form, short of torture in addition to execution – has taken on a political dimension having little to do with the long-stated modern humane purposes of punishment – deterring crimes, rehabilitating criminals, or compensating victims. Rather, recent American penal practice relating to the death penalty has stumbled into the cesspool of revenge – allegedly comforting or somehow bringing “closure” to victims or their families by killing perpetrators – or as a cynic might observe, scoring higher rating points for the media who obsess with such things.

In sum, Sarat is much more measured in his comments on the revenge motives of our modern American criminal justice system than those more familiar with religious history might be. He sees our legal system stumbling along with the uncertainties of mercy poised as a threat to rule-determined legal decisions; those seriously trained in theology are watching a culture running on empty and being exploited by its worst elements. Since Sarat’s book has been published, we have witnessed the much publicized execution and denial of clemency to Stanley (Tookie) Williams by the Terminator. A religious charlatan has told us that Ariel Sharon is being punished by a G-d who deplores his sub-dividing of Eretz Israel. And earlier, as Texas [*83] Governor, President George Bush denied clemency, and presided over the execution of a born-again Christian, Karla Faye Tucker. Such actions are of one piece – moral and religious travesties.

Of additional use are the book’s two appendices – the Ryan statement of his reasons for granting clemency delivered at Northwestern University College of Law on January 11, 2003, and charts of grants of capital clemency by states, 1900-2004.

This book is rich in details for those who care about these issues. Its observation that clemency is disorderly when framed only as mercy is well-taken. There are, fortunately, other good reasons for granting clemency.

REFERENCES:

Sarat, Austin. 2001. LAW, VIOLENCE, AND THE POSSIBILITY OF JUSTICE. Princeton, NJ: Princeton University Press.

Sarat, Austin (ed). 2002. WHEN THE STATE KILLS: CAPITAL PUNISHMENT AND THE AMERICAN CONDITION. Princeton, NJ: Princeton University Press.

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