The Underfunded Death Penalty: Mercy as Discrimination in a Rights Based System of Justice

Malla Pollack, American Justice School of Law

Article comments

Author holds copyright. Permission for any use is given in return for a citation.

Abstract

This paper suggests that the relationship between justice and mercy is dependent on the system in which they are operating. [In a rights-based system, one where discrimination is forbidden, mercy is acceptable only when it is a subset of justice. Arbitrary mercy treating like cases in unlike fashion is moral only if individuals have no "right" to equal treatment, i.e., in a duty-based system. This paper begins with moral theory: part I briefly presents other recent philosophical treatments of mercy; part II states a philosophical "Thesis," illustrates it with the leading case of Queen v. Dudley, and explains why Dudley cannot be bodily transposed into a rights-based society. Turning to positive law in the United States, the paper tests several leading death-penalty cases (part III) and pardon jurisprudence (part IV) against the earlier philosophical conclusions and finds them wanting.