Chapter

Criminalization and the Criminal Process: Prudential Mercy as a Limit on Penal Sanctions in an Era of Mass Incarceration

Carol S Steiker

in The Boundaries of the Criminal Law

Published in print November 2010 | ISBN: 9780199600557
Published online September 2011 | e-ISBN: 9780191729171 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199600557.003.0002

Series: Criminalization

Criminalization and the Criminal Process: Prudential Mercy as a Limit on Penal Sanctions in an Era of Mass Incarceration

Show Summary Details

Preview

This chapter argues that the dominant discourse between retributivism and social welfare theory about the purposes of punishment inevitably tends toward overpunishment. This is partly due to the current set of political and social arrangements (leading both to differential rates of offending and differential policing in poor and minority communities) and partly to human cognitive biases. One way to counter this tendency is by promoting greater discretion to decline punishment on the part of institutional actors throughout the criminal justice process. This argument amounts to a ‘prudential’ case for mercy in criminal justice — a case premised not on a new theory of the relationship between justice and mercy, but rather on the predictable failures of existing theories of just punishment.

Keywords: retributivism; social welfare theory; criminalization; overpunishment; criminal justice

Chapter.  14501 words. 

Subjects: Criminal Law

Full text: subscription required

How to subscribe Recommend to my Librarian

Buy this work at Oxford University Press »

Users without a subscription are not able to see the full content. Please, subscribe or login to access all content.