“Transition” and of a forward- looking focus on welfare. It really is
Transition punishment: non- angry, generous in spirit, yet insistent about
the wrongfulness of wrongful acts. If skillfully conducted, it seems likely
to be very fruitful, as indeed the experimental evidence suggests. Surely a
trained coordinator will be better at working with offenders in a forward-
looking way than prosecutors and judges. And Braithwaite is no doubt
correct that all too often the official criminal justice system alienates and stigmatizes.
On the other hand, in terms of our Eumenidean idea of turning
anger over to impartial agencies of justice, the proposal has question-
able features. Braithwaite is well aware that conferences may seem to
flout ideas of procedural justice and due process. For this reason, if the
offender denies the charges, he or she is then transferred into the normal
justice system. He or she does not have to plead guilty.81 There are also
obvious worries about anger, shame, and humiliation emerging within
the conference setting itself, despite the best efforts of the coordinator.
Braithwaite knows this too, but replies that victims are really much less
angry and vengeful than one might expect, once they are in a room with a
real person whose story they hear.82 Nor is he oblivious to the danger that
his type of shame, which is based on emulation, will slide over into ostra-
cism and stigmatization, and he proposes to head this off through a vari-
ety of “rituals of inclusion.” As for the idea that community norms may
themselves include stigmatization of subgroups, he proposes to head this
off by focusing only on predatory offenses about which there is a high
level of consensus across groups. And as for inevitable power imbalances
in the conference setting itself (often tracking asymmetries of race and
class in the outside world), these are held at bay through the careful con-
struction of the conference and especially the vigilance of the coordinator.
What should we say about these proposals? One obvious difficulty is
that Braithwaite is comparing an idealized and carefully controlled ver-
sion of his own process with the daily run- of- the- mill work of the crimi-
nal justice system. If his system were practiced widely, across a diverse
country, how many coordinators would really perform the difficult task
he assigns to them, and what would the average look like? As with all
discretionary systems, we need to look at the rule, not the ideal. Run in
a routinized or inattentive way, conferences would lack the procedural
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safeguards of the criminal justice system while lacking, as well, the
impressive virtues of the Braithwaitean system.
I think that Braithwaite is right about the need to supplement
formal justice with something intimate, insistently forward- looking,
focused on awakening and not brutalizing conscience, and that inter-
ventions of his sort can have unexpected power because they commu-
nicate love, generosity, and respect, virtues hard to find in the juvenile
justice system. Whenever we can feel confident that the coordinators
have the requisite expertise and judgment, this is indeed a promising
supplement to formal approaches, and certainly to be preferred to the
intensely retributive attitudes that usually animate society’s dealings
with youthful offenders.
Indeed, we do not need to wait for a crime to occur in order to use
some Braithwaitean techniques. The principal of a high school for trou-
bled teens in Chicago who had been expelled from other public schools
used a related type of conferencing, run by a team of psychiatric social
workers, to get these kids, possibly bound for crime, to think about them-
selves in a different way. When I visited this program, the coordinators of
the group therapy emphasized that the main thing they took themselves
to be contributing was not any particular method or expertise, it was
just listening to the kids and taking them seriously, which other adults
in their world usually didn’t (although they got the families involved
whenever they could). I think wherever we can inject into the system this
virtue of personal care and listening, this should certainly be attempted,
and group therapy of the sort these social workers conducted at Morton
Alternative can be tried out much more pervasively in the school and in
the juvenile justice system.
However— and here is where I would separate my view from
Braithwaite’s larger theory as set out in his book— the right way to use
these alternative techniques is as a delegation from the impartial justice
system, a way it has found of pursuing some of its goals, especially with
juveniles. There is absolutely no reason to accept an overall theory that the community is the locus of justice, or to hold, as Braithwaite seems to, that
the primary agent of justice always ought to be the community first, and
the legal system only second. It’s like privatizing anything else: govern-
ment may choose to do so if there is reason to believe the private system
will work better than the usual public approach, but the alternative must
remain transparent to public critique, accountable to voters, and subject
to procedural constraints of basic justice. Such an approach would also
reassure victims that their concerns were taken seriously: Braithwaite has
difficulty responding to feminist critics who complain that informal con-
ferences “privatize” domestic violence and sexual assault in a bad way,
treating these victims as of lesser dignity under the law.83
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It seems to me, too, that Braithwaite should be clearer about the emo-
tions that he is attempting to inspire in the young offender. “Shame” is
usually understood as an emotion that involves a feeling of pervasive
inadequacy, keyed to an enduring trait, not a single act.84 Thus, it is a misleading name for an emotion that involves, centrally, the separation of act
from offender. I would say that “regret” and “agent- regret” (see chapter 4) are good terms for a negative emotion directed at the act, and both are
compatible with, at the same time, emulation of good models and good
paths in life. Emulation is very different from shame as typically con-
ceived. Braithwaite seems to have begun with a rather humiliation- based
picture of punishing: the chapter on Japan in his book shows him approv-
ing of a system that involves harsh interrogations and lots of confessing
and lowering; it is only later that he shifts to the much more attractive
picture that animates his empirical work. But the concepts are never suf-
ficiently clarified. So I think that Braithwaite’s proposal, while totally different from the proposals for shame- based penalties that I have already
rejected, which involve humiliation as his does not, still leaves itself open to misunderstanding on this point.
Braithwaite’s specific proposal is tailored to the needs of the juvenile
justice system. But there are many ways in which a Transition mentality
can generate a critique of backward- looking practices in the criminal law.
In many ways, the current system is not forward- looking at all, but insists
on tying offenders to their prior bad act. Three- strikes laws, sentencing
based on “criminal history” and “career criminal” categorizations are just
some of the practices that a rational society will study empirically in a
forward- looking spirit, asking whether they promote social welfare. It
seems likely that at least some of them will fail to pass the test: they are
popular because of the payback mentality.
V. Mercy: Linking the Ex Post to the Ex Ante
Throughout my discussion of the ex post punishment perspective, I have emphasized the immense importance of ex ante thinking. If societies protected human welfare better, there would no doubt still be crime, but
there would be less of it. Education, employment, nutrition, and housing
do make a difference. Now, in concluding this discussion of punishment,
I want to suggest that an attitude much praised by the Stoics makes a
valuable contribution, linking our ongoing interest in sympathetic imag-
ining to a normative account of the good judge (or juror).
According to the Greco- Roman conception, mercy (Greek epieikeia,
Latin clementia) is an attribute of the good judge, in deciding how to respond to wrongful acts.85 Seneca defines it as “an inclination of the
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mind toward leniency in exacting punishment.” Mercy, then, is not the
same thing as compassion (Lat. misericordia, Ital. pietà, Gk. eleos and oiktos). Mercy is a mental inclination but not necessarily an emotion; compassion is an emotional reaction to the plight of another person. Mercy
recognizes that the person is at fault: it belongs, so to speak, at the pen-
alty phase of a trial, after conviction. Compassion, by contrast, need have
nothing at all to do with fault: indeed, as typically understood, it rec-
ognizes a large role for uncontrolled events in getting people into the
bad situation that inspires the painful emotion: its content involves the
thought that the person is either wholly or partly blameless.86 And yet
there is a link between the two attitudes: for mercy, as the Stoics define
it, recognizes that the person’s bad behavior is in part the outgrowth of
substandard prior conditions, for which they are not to blame.
I am speaking only of the Greco- Roman conception of mercy, not of
a very different conception that one also finds in the history of Western
legal thought, which I shall call the “monarchical” conception.87 The
monarchical conception, which we find, for example, in Portia’s famous
speech about mercy in Shakespeare’s The Merchant of Venice, holds that mercy is the free gift of a divine God or ruler, permanently situated above
the erring mortal. It presupposes hierarchy, and it suggests that mercy’s
source is perfect or flawless. The monarch can bestow mercy not because
of a recognition of common humanity, but because of a secure knowledge
of permanent difference and superiority. Nor does monarchical mercy
require any effort of sympathy or imagination: for all are alike low, base,
and sinful, so imagining the heart of another will show us no particular
reasons for mitigation and would thus be a waste of time. It is notorious
that Portia makes absolutely no effort to imagine what a Jew in Venice
might feel, what experiences of stigma and hatred might have led to his
obdurate insistence on his bond.
The monarchical conception of mercy has a close relationship to the
religious ideas of forgiveness we have scrutinized critically in chapter 3.
Greco- Roman mercy, by contrast, is not monarchical, but egalitarian: it
says that we are all in this together, we understand human life because
we are in its midst and burdened by its difficulties, though some are
more burdened than others. Nobody is secure, and the judge no more
than the offender. This conception has its own long tradition. And it cer-
tainly plays a role in Shakespeare, whose Measure for Measure is far more Senecan than monarchical.
Senecan (or more generally Greco- Roman) mercy begins from a sim-
ple insight: there are many obstacles to acting well. Thus, when people
do bad things, it is sometimes fully their own fault, but often we want to
say that they have been tripped up by unusual circumstances and pres-
sures. Circumstances, and not innate evil propensities, are at the origins
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of a lot of the crime we see. Thus, close inspection of circumstances often
leads to a generous spirit of mitigation in assigning a sentence. Typically
such considerations figure at the penalty phase of a trial, but they can
inform criminal justice thinking more generally (as they do, for example,
in Braithwaite’s approach to juvenile justice).
In a sense, the merciful judge looks backward. But at the same time,
while acknowledging the fact of wrongdoing, and thus expressing soci-
ety’s commitment to core values, the judge also looks forward to a world
of reintegration. The general spirit is that of Transition- Anger: there is
outrage at the wrong done, but a generous spirit takes the place of the
merely punitive spirit. In addition to the usual concern about specific and
general deterrence, and sometimes incapacitation, this judge also asks
about how, in a world of human frailty, we may all be able to live together
as well as possible. This concern may sometimes take the form of specific
mercy to a specific defendant. But, given that this judge tries to under-
stand the background conditions that are implicated in crime, his or her
concern should also lead onward to a more general consideration of what
may be done ex ante to prevent future cases. The ex post attitude leads to a rededication to the ex ante perspective. Sympathetic appreciation of the defendant’s circumstances may not, and should not, lead to mitigation
in every specific case. (Obviously much depends on the baseline from
which a downward departure is contemplated, as well as on empirical
facts about deterrence.) But it does something better: it reminds us that
we share a common humanity, which can be damaged by conditions that
are in our power to change. All too often, retributive harshness is nour-
ished by demonizing the defendant, and telling stories, usually false,
about how this person is utterly different from the “good” members of
the community. And this mindset gets in the way of good social thinking.
Since, like Bentham, we are for a time confining our observations
to the sphere of “criminal justice,” we can imagine many ways for a
Transition mentality to work in that sphere. Such a welfare- focused sys-
tem will almost certainly avoid mandatory minimum sentencing and
harsh punishment for victimless crimes. It will also, where possible,
use Braithwaitean techniques, particularly when dealing with juvenile
offenders. With adults, the merciful judge may imagine alternative ave-
nues within the justice system that lead to sentences involving therapy
(drug and alcohol treatment, domestic violence and anger management
programs) rather than to incarceration and brutalization. And at the sen-
tencing phase, courts can encourage the victim to narrate any un
usual
obstacles to good action that his or her life story affords, although, as I’ve said, this should not lead to mitigation in each and every case.88 What, in
general, society ought to express is this: the crime is outrageous, but we
can see the offender, with sympathy, as someone who is more and better
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than the crime, capable of good in future, and we can adjust sentencing
in the light of that thought. Meanwhile, we redouble our dedication to
creating more propitious conditions for all.
I have emphasized the role that helplessness plays in retribu-
tion: retributive wishes are often a displacement from underlying pow-
erlessness, giving the illusion that one can do something about one’s
bad situation. We might, then, speculate that people, and institutions,
become more capable of mercy to the extent that they are more confi-
dent about their stability and power. Such a connection, in fact, was per-
suasively made by Nietzsche.89 Nietzsche, like Seneca (by whom he is
much influenced), argues that the revenge- based morality that he sees
in Christianity is connected psychologically to a sense of weakness and
impotence. He traces the way in which this sense of impotence leads to
delight in fantasized projects of retribution, often by God in the afterlife.
Retribution, he argues, is not likely to be a characteristic preoccupation of a strong person or community. Indeed, in a strong person or community,
the interest in retribution will gradually overcome itself in the direction
of mercy. He focuses, as do I, on the “criminal justice system”:
As its power increases, a community ceases to take the individ-
ual’s transgressions so seriously, because they can no longer be
considered as dangerous and destructive to the whole as they
were formerly. … As the power and self- confidence of a com-
munity increase, the penal law always becomes more moder-
ate; every weakening or imperiling of the former brings with it
a restoration of the harsher forms of the latter. The “creditor”
always becomes more humane to the extent that he has grown
richer; finally, how much injury he can endure without suf-
fering from it becomes the actual measure of his wealth. It is
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