“Justice tempered by mercy” is a phrase I hear a lot. Distinguished speakers at legal events invariably say it. I think they think it is a way to sound smart and virtuous.
I suppose it does sound that way. The phrase comes from John Milton’s epic poem Paradise Lost, which is an account of the fall of man from the Bible’s book of Genesis. In the poem, after Adam and Eve eat from the tree of knowledge of good and evil, God beckons his Son. God directs the Son to go to the Garden of Eden to punish Adam and Eve. Before leaving, the Son says:
I go to judge
On earth these thy transgressours; but thou knowest,
Whoever judged, the worst on me must light,
When time shall be; for so I undertook
Before thee; and, not repenting, this obtain
Of right, that I may mitigate their doom
On me derived; yet I shall temper so
Justice with mercy, as may illustrate most
Them fully satisfied, and thee appease.
The poem is hard to read, so quoting it implies you have read and understood it, and are, therefore, smart. Justice, temperance and mercy are good things, so the phrase signals virtue as well. I wonder, though, if those quoting the poem have taken the time to think through what the phrase actually means, and what its application would portend for the legal system. If the point of uttering the phrase is to sound august as a speaker, then okay. If the point, however, is to offer actionable advice for trial judges, or if it is taken as actionable advice by the judges, then we better examine it further. Should a trial judge temper justice with mercy?
Questions of justice and mercy arise most commonly in criminal cases, particularly at sentencing hearings. The defense will beg the trial judge for mercy. Often it is the defendant himself or a family member on behalf of the defendant. Sometimes, it is even the defense attorney. The impulse to beg for mercy is understandable. The judge has great authority and is exercising control over the defendant’s life. Many times, the defense has no viable argument for leniency under the law or facts, and resorts to pleading with the judge for mercy.
Justice is what the law outlines. It is the application the sentencing parameters the democratically constituted legislature has adopted. Mercy is outside of that. Mercy is a compassionate forbearance shown to an offender. Legal philosopher Jeffrie Murphy elaborates on the common definition in his book Forgiveness and Mercy, stating:
It is never owed to anyone as a right or a matter of desert or justice. It always, therefore, transcends the realm of strict moral obligation and is best viewed as a free gift—an act of grace, love or compassion that is beyond the claims of right, duty, and obligation.
In the context of a criminal sentencing, mercy would arise where the judge weighs the aggravators and mitigators and determines a just sentence according to the law, then departs from that sentence in a show of leniency and compassion to the defendant or his family. The judge would be saying, in effect, “you deserve X according to the law, but I am going to show you mercy and sentence you to X minus 2.” In contrast, it is not mercy to find that the mitigating factors outweigh the aggravating factors and enter a reduced sentence. That is well within the law. That is not mercy. Mitigation is a statutory right. Mercy is a free gift.
As tempting as it sounds for powerful court officials to embrace mercy, it is outside of the law to do so. As Murphy writes:
If mercy requires a tempering of justice, then there is a sense in which mercy may require a departure from justice. Thus, to be merciful is perhaps to be unjust. But it is a vice, not a virtue, to manifest injustice. Thus, mercy must be, not a virtue, but a vice—a product of morally dangerous sentimentality. This is particularly obvious in the case of a sentencing judge. We (society) hire this individual to enforce the rule of law under which we live. We think of this as doing justice, and the doing of this is surely his sworn obligation. What business does he have, then, ignoring his obligations to justice while he pursues some private, idiosyncratic, and not publicly accountable virtue of love and compassion?
In granting mercy, a judge is substituting his or her own sentimentality for the law, and no person is above the law, even if he goes about it nicely.
It is ironic, then, that those advocating justice tempered by mercy quote Paradise Lost. In Genesis, as described in the poem, God makes a rule, a law if you will, for Adam and Eve. As Eve says in the poem, “But of the Fruit of this fair Tree amidst The Garden, God hath said, Ye shall not eate.”
Satan, as the serpent, persuades Eve to eat the fruit. He does so, in part, by telling her that he has eaten the fruit himself and it has made him wise like God. As described in the poem:
The Tempter all impassiond thus began.
O Sacred, Wise, and Wisdom-giving Plant,
Mother of Science, Now I feel thy Power
Within me cleere, not onely to discerne
Things in thir Causes, but to trace the wayes
Of highest Agents, deemd however wise.
The serpent is telling Eve that if she eats the fruit, she will have the knowledge of good and evil like God. He persuades her she can substitute her own wisdom for God’s commandments. In so doing, Eve brings about the fall of man.
This is what a judge is doing when he tempers justice with mercy. He is substituting his own wisdom for the legislature’s commandments, and risks the fall of the law. Relying on a singular judge’s idiosyncratic sentimentality, rather than the law, obliterates the law. It replaces the conscience of the people with the conscience of the lone judge. It reduces the legislative process to the feelings of a particular individual.
Words matter in the law. In fact, the law is words. Distinguished legal speakers must be careful what they say. “Justice tempered by mercy” is a beautiful phrase, but in Milton’s poem, it was uttered by the Son of God. The Son is not substituting his wisdom for God’s law when he acts mercifully, he is God’s law. God has the power to grant mercy, democratically elected trial court judges do not. If you tell a judge to temper justice with mercy, you are not the Son in Milton’s poem, you are the serpent.