Apology, Legislation, and Mercy

Source: (2004) North Carolina Law Review. 82(4): 1415-1440.

This Essay first, in Part I, reviews the current state of the jurisprudence of mercy; thus, it considers the varying definitions of the nature of the act of mercy, as well as the widely disparate views of legal scholars on the relationship between mercy and justice – i.e., whether mercy is consistent with, entailed by, or actually subversive of justice. Parts II and III consider the especially complex link between mercy and the morality, justice, and utility of the death penalty, in older British law and in modern American constitutional law respectively. Then, in Part IV, this Essay approaches these important questions from an admittedly unusual perspective: it redefines the nature of capital mercy in what may seem a counterintuitive way – by endowing parties other than the executive with the power to grant it. Furthermore, this Essay focuses most intently upon how legal systems implicitly struggle with these questions rather than explicitly answering them. Specifically, this Essay takes an oblique look at the recent Illinois drama by focusing not on the mass commutation itself as an act of mercy, but on the Illinois Death Reform law that was passed almost a year after the gubernatorial commutation. (excerpt)