In this last interview in a series of three on justice and incarceration in the United States, we leave behind some of the more depressing realities of solitary confinement to speak with Linda Ross Meyer about possibilities for reimagining criminal justice. Meyer wants us to think differently about how we punish, whom we punish, and why we punish. Her book The Justice of Mercy wrestles with the conflict many see between giving people what they deserve for wrongdoing (meting out punishment) and treating offenders fairly (which may require mercy).
Meyer is a professor of law at Quinnipiac University School of Law, in Connecticut. She earned her JD and her PhD at the University of California at Berkeley, clerked for Supreme Court Justice Sandra Day O’Connor, and taught at Vanderbilt Law School. She teaches torts, criminal law, jurisprudence, theories of punishment, a Supreme Court seminar, and animal law. She also sings in a sextet and writes novels for young adults. She’s a passionate advocate for fair treatment who practices what she preaches, teaching courses in prison to help offenders access the life of the mind and imagine better futures.
THE BELIEVER: Retribution is the idea that those who commit a crime must be punished as payback for harm they have caused. It’s how most Americans think about criminal law. You’ve argued that replacing our retributive system with a more merciful one would be both more just and more effective. How would that work or why is that so?
LINDA ROSS MEYER: We tend to think of crime in pseudo-monetary terms as a “debt.” Debts, of course, have to be paid, and criminal debts have to be paid in years. However, if, using a different metaphor, we think of crime as a breach of trust between real people, then what seems right to do about it changes. The ideal fix for a breach is a reunification and an attempt to restore trust, not a “payment.” Reunification can come about in many ways, but at some point it requires a willingness of community members to trust and to take risks. The language of mercy reflects the lack of surety and lack of reciprocity inherent in taking that risk.
BLVR: Showing mercy is not the tit for tat of a debt repaid. Perhaps most people are wary of taking that risk with someone who has already broken the law?
LRM: Sure. But do we have to think that way? Mercy, traditionally, has been thought appropriate only in personal relationships. “Just desserts” seem foreign in the context of friendships—you might expect an apology from a friend who runs over your garden, and you might expect her to fix the garden and take you out to dinner. But it’s not appropriate to impose on your friend some painful experience that will be equivalent to the pain you suffered. If you did decide to, say, kill your friend’s favorite plant in order to even the scales, you would have violated the friendship. Indeed, even if you asked a neutral third party to run over an equivalent part of the friend’s garden, it would not do. Instead, the right way to respond to offenses in friendships is to get to work on restoring the garden and the relationship, with a forward-looking spirit of forgiveness that allows for that possibility.
BLVR: In doing so, you orient yourself to a better future rather than a harmful past. Do you think that can apply to criminal justice as well?
LRM: Well, sure. Wives forgive husbands for physical abuse. Husbands forgive wives for infidelity. Children forgive parents for neglect. Parents forgive children for theft and fraud and insults. Friends forgive friends for betrayals and even for physical harm. Communities forgive heroes for violence.
BLVR: In each of these cases we might want someone to pay us back for harm caused, and at the same time we probably can’t avoid facing the impossibility of payback. What would pay me back for having been beaten or cheated on? The only recovery possible is an ended relationship or a rebuilt relationship. For that, mercy seems a better metaphor than debt.
LRM: Right. Even our retributive institutions cannot deny this on some level. If you take the time to look, you see that mercy often does happen, around the edges of the criminal justice system.
LRM: Mercy, both in the sense of exceptions to rules and in the sense of undeserved leniency, is everywhere in the law. It lies in the generosity of victims who don’t press charges or call the police but work out community solutions to crime; in the skill of police officers who defuse and mediate rather than arrest; in the judgment of prosecutors who use their discretion to divert defendants to community services or drug rehabilitation rather than prosecuting them, or who allow pleas to lesser charges in order to recognize a defendant’s remorse and efforts to reform; in prison administrators who try to help defendants keep family ties intact so defendants have a home to go to when they get out; in community organizations that make sure victims can pay rent and medical bills and have safe places to recover from trauma; in volunteers and foster parents who give rides to prisoners’ children so that they can visit their parents; in doctors and lawyers who give free medical and legal care to those who can’t afford it. Nobody “deserves” any of this.
BLVR: It’s not about retribution.
LRM: Right. Even though it doesn’t “even the scales” or give pain for pain, lots of people give mercy anyway, and those gifts create loyalty and allegiance that often lead to a renewed sense of responsibility to others. Responsibility is always for someone and to someone. Years in a solitary cell do not convey that. But giving to others and receiving from others do. These gifts demonstrate care and responsibility and make people want to give back.
BLVR: And it’s more likely to prepare an offender for a life outside of prison than our current system, with its extremely high recidivism rates, where it seems like all you learn in prison is how to survive prison.
LRM: Sentencing practices in the last twenty years have been extremely harsh, making the United States the world’s leader in terms of the percentage of its population that it keeps locked up. But I would argue that it is our mind-set that needs to change, not primarily our institutions. If we continue to think of harsher penalties as more likely to be just than lenient ones, and if we continue to think of longer, crueler sentences as more respectful to victims, then “official” sentences will become longer and longer, and mercy will remain hidden. However, if we think hard about the fact that 95 percent of those we imprison are going to come back out again, and we ask about how reunification of the offender with the community is going to take place, then our focus shifts. What happens while people are in prison, doing the time they “owe”? Is there a better way to reconnect the disaffected, intentional wrongdoer to a community ethic of fairness?
Enlightened prison administrators are recognizing that building positive communities and allowing folks in prison to give back is more efficacious than structuring prison as an exercise in pain and “total discipline.” Dora Schriro’s innovations in Arizona, Missouri, and New York, for example, allow prisoners to create that kind of community, and her ideas have been successful in lowering recidivism rates and increasing reparations to victims. Those incarcerated in the prisons she runs share in the social benefits of the choices they make, share in the success of the companies they work for, choose what charities to support, and participate in prison governance. They have a chance to experience the positive aspects of community and to find meaning, camaraderie, satisfaction, and responsibility in working with and for others.
BLVR: The mercy approach treats offenders as human beings who have erred and who may have brighter futures. Still, many people think that law is made up of rules; mercy makes an exception to rules; therefore mercy is unlawful. What do you say to them?
LRM: Think of the rule “No papers will be accepted after 5 p.m. on September 1.” Simple enough, right? And while we can apply rules this way, we hardly ever do so in life. Imagine if I refused to accept a paper from a student who had suffered a heart attack just before pressing the email SUBMIT button. Based on academic custom, students and administrators would rightfully expect me to accept the paper, because not doing so would seem unfair. Just as judges allow self-defense claims even when a criminal statute doesn’t explicitly allow for them, rules governing human relationships are always interpreted in light of what seems fair. Now, you might argue, we simply need to make the rules more explicit. But could you really begin to spell out all the circumstances in which fairness would require you to make an exception to the late-paper rule? And when we do try to state the rule with more specificity, we introduce more room for interpretive disagreement. That’s why, no matter how detailed we make the tax code, there are always loopholes.
BLVR: That’s a good point.
LRM: Once we realize how much work our background assumptions about fairness are doing when we apply rules of law, the objection that mercy is an “exception” to a rule seems much less powerful. Beneath the surface, and often unconsciously, we are always judging whether to make an exception or not. Even when we apply the rule “as is,” we have already made a decision that this case is not exceptional. Think of people you would trust to judge your actions. My guess is that they are not merely fine logicians who know the relevant rules, but are thoughtful, experienced, reflective, kind, optimistic, compassionate, and good problem-solvers and mediators. My guess is that they also care about you and seek your good, and do not tend to think in terms of paying back, but of paying forward. That’s what judging with mercy is about.
BLVR: It sounds to me like, in order to judge with mercy, I would have to know more about the offender than the mere fact of a crime having been committed.
LRM: Well, the system already does take a lot of context into account—but we often don’t think about what context entails. In many cases of crime, especially among young people, we see the absence of parents, the chaotic schooling, lack of a home or frequent changes of address, lack of medical care, and, of course, the record of criminal conduct. But what we don’t seem to infer is that when lives are unstable, when no one protects you, when there is no way to hold on to what you need to survive, when mistrust is safer than trust, then survival is the only ethic. Many of the students I met in prison lived in worlds like this for their whole pre-prison lives, where a lack of the “rule of law”—where a lack of trust—made them vulnerable and mistrustful and, eventually, cruel.
BLVR: Treating someone who has always lacked safety the same as you would someone who has been protected is the wrong way to conceive of equality.
LRM: Right. Studies by Tom Tyler and others have shown that when government actors treat people with dignity, respect, attention, kindness, and compassion, they feel “fairly” treated, whereas when government actors “process” people the “same” way “by the book,” they do not feel fairly treated. Once we acknowledge that fairness is not the same as logical equality according to a rule, but must include attentiveness, respect, friendliness, and care, we begin to engender the loyalty to government actors and institutions that creates law-abidingness—a law that focuses on how to abide with each other rather than on playing logical games with rules.
BLVR: It sounds like a lot of work to pay that much attention to everyone who ends up in the legal system. But if one function of law is to give each person her due, perhaps this is a better way to achieve that.
LRM: McDonald’s serves a lot of burgers, but they still require their employees to smile at each customer. Our attitudes matter here. All governments and institutions come down to people. In the past, we’ve experimented with “exporting” our judicial and constitutional systems to other countries, as though a set of rules alone could create and stabilize a community. That doesn’t work, because legal rules have to fit a culture and community in order to be applied with a “fairness” that makes sense to the people. But create a situation that requires mutual trust and reliance—a classroom, a jury, a workplace, or even an anonymous group of daily commuters—and practices, customs, law-abidingness do happen.
BLVR: People who abide alongside each other create rules whether they know it or not, out of a sense of, or the need for, trust.
LRM: Yup. Every household generates habits, practices, and rules out of the mutual accommodations of living together in one place—sometimes without discussion, and sometimes with lots of discussion. But the law we develop and that develops around us depends on something prior—the trust we place in each other. That trust is a risk and a gift—but we do it every day on the highway and at the movies and in the grocery store. When that trust is broken, we are deeply shocked, because we rarely pay attention to how much we do trust each other. But the trust—the undeserved mercy—comes first and enables custom and law to grow up in it.
BLVR: And the aim of the justice of mercy is to rebuild trust rather than contribute to its further decay.
LRM: Right. But let’s remember: no legal system, no matter how closely it adheres to rules, can make trust happen. Mercy and law are mutually dependent and very fragile. Becoming aware of that fragility may be dangerous— its very taken-for-grantedness is what makes the trust so deep—but becoming aware of it also makes us more grateful to each other and more aware of the importance of the infinitesimal acts of personal mercy: a smile, a kind word, a little more patience, a wallet returned, a seat on the bus, a charitable interpretation, a sense of responsibility to others. These things are at the core of that trust and help to maintain it.