Jacob Smith ‘23
Professor Liaison Editor
Should we define people by their worst acts? Of course not! Especially at a time when criminal justice reform is increasingly popular, it is uncontroversial to say that American criminal justice ought to be more merciful. What was surprising about Judge Stephanos Bibas’s talk on “The Decline of Mercy” was not the principles he applied to criminal justice reform, but their striking application to how we treat each other on social media and as aspiring lawyers.
Judge Bibas’s “The Decline of Mercy” talk occurred on Wednesday, March 10, hosted by the Federalist Society. Judge Bibas is a former Assistant United States Attorney and currently sits on the Court of Appeals for the Third Circuit.
Mercy is an important principle in criminal justice. Mercy tells us to judge acts, not actors. As Judge Bibas described it, mercy is that which allows us to grow beyond our past wrongs and “turn over a new leaf.” Without mercy, Judge Bibas seemed to imply, punishment would last forever and we would always carry the guilt of past wrongs.
According to Judge Bibas, our criminal justice institutions do not embody mercy the way that they should. While activists tend to be suspicious of the past, Judge Bibas suggested that modern criminal justice can learn something from the American colonial era when it comes to mercy. Specifically, American criminal justice has neglected three themes: punishing wrongs instead of wrongdoers, confronting criminals face to face, and looking forward instead of backward.
Punishing wrongs, not wrongdoers
Judge Bibas described colonial criminal justice as focused on “punishing wrongs, not de-personing wrongdoers.” Severe penalties like hanging or banishment were rare. More often, lawbreakers would be required to pay a fine or make an apology. Even public shaming tended to be swift and soon over. Wrongdoers would receive “swift and temporary” punishment, and then they would be forgiven and reintegrated into the community. A common Christian faith contributed to a common sense of humanity: “We’re all sinners, and we all deserve some punishment, but we all can turn over a new leaf.” But today, when our felons are released from prison, they cannot vote or live in public housing, and they may be forced to disclose their criminal records on job applications. Judge Bibas described them as “a permanent class.”
Face-to-face
Having the public confront wrongdoers face-to-face is also valuable. Judge Bibas described criminal adjudication in the colonial period as “centered around jury trials” and akin to a “morality play.” Lawbreakers received their punishment and verdict in a very public way. Local criminal justice occupies much less public attention today. Criminal justice is “professionalized.” Jury trials are rare. In response to a student question, Judge Bibas acknowledged that jury trials do require more resources today in part because of valuable procedural protections. However, other aspects of jury trials could be streamlined. One negative result of our extremely low rate of jury trials is that the public is less aware of how criminal defendants fare in our courts.
Forward-looking
Third, criminal justice ought to look forward more than it looks backward. First-semester criminal law taught me that retribution and deterrence are big players when it comes to justifying criminal penalties. However, Judge Bibas thinks those backward-looking justifications should take a back seat to the wrongdoer’s future. Crime is generally not a rational act, and so an ex-ante law-and-economics perspective is less relevant. But people do change, and criminal justice should account for that. Once again, things were different in the colonial era. “Judges and juries could accept apologies, they could recognize change, they could nullify and reduce punishments,” Judge Bibas said.
Mercy on Twitter
Criminal justice reform is hard enough. However, Judge Bibas was not content to stop there. Judge Bibas brought his three themes of mercy to bear on social media. Theme one: we should not define someone by their worst act—even if that act consisted of evil words posted online. Theme two: we should face criminal wrongdoers face to face. We should also not “hide behind phone screens” and dehumanize those we disagree with online, but keep on engaging them. Theme three: “there should be no civic death penalty.” We ought to allow wrongdoers a chance to repent—even when the wrong is a tweet.
Mercy for Lawyers
Finally, how can we be merciful lawyers? Judge Bibas offered some suggestions during his speech and the question-and-answer period that followed. We should listen to understand, instead of listening to respond. Judge Bibas mentioned that taking notes while listening can be helpful. We should also start with the assumption that others are acting in good faith. As a judge, for example, one should “read the majority opinion with great care,” and only then decide one will dissent. And we should treat others with the same respect and dignity with which we want to be treated.
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js3hp@virginia.edu