Duff RA (2007) The Intrusion of Mercy. Ohio State Journal of Criminal Law, 4 (2), pp. 361-387. http://moritzlaw.osu.edu/osjcl/
On the basis of a communicative theory of criminal punishment, I show how mercy has a significant but limited role to play in the criminal law—in particular (although not only) in criminal sentencing. Mercy involves an intrusion into the realm of criminal law of values and concerns that are not themselves part of the perspective of criminal law: a merciful sentencer acts beyond the limits of her legal role, on the basis of moral considerations that conflict with the demands of penal justice. Sometimes, however (but in a decent system of law in a decent society, rarely), that is how citizens should act. Finally, I discuss, and criticise, two attempts to find a place for mercy within a communicative conception of punishment, and argue that repentance is not an appropriate ground for leniency or mercy in sentencing.
; Criminal law Philosophy; Criminal liability; Criminal procedure Moral and ethical aspects; Punishment Moral and ethical aspects; Mercy; Law and ethics
Ohio State Journal of Criminal Law: Volume 4, Issue 2