Murphy on mercy: A prudential reconsideration

It is an honor and a pleasure to be asked to comment on the work of Jeffrie Murphy, work that has long spoken to me as a scholar of the American criminal justice system. In the process of becoming an academic myself, I have noticed that there are certain other scholars whose scholarship seems to remain ever close at hand, or close to mind--framing issues, posing questions, remaining quotable even when one disagrees. These works leave an imprint, much in the way that beloved childhood books and music do, becoming part of one's frame of reference whether one is consciously aware of it or not. Perhaps this imprinting process occurs most often with the first scholarly works that seriously engage one, or with works that address the particular issues that one finds especially compelling, or with works that provide a template of sorts for one's own emerging voice. All of these reasons apply to some degree for me in the case of Murphy's work, but I think there are additional reasons for my connection to Murphy's scholarship that are less personal and more general--that is, that are reasons to celebrate and engage with his work on an occasion such as this. On reflection, Murphy's voice has had particular resonance for me as a consequence of what I would call both its distinctive "range" and its distinctive "timbre." Murphy's work has ranged from such highly theoretical and foundational questions as the moral and political justifications for the institution of criminal punishment to far more concrete applications of moral and political theory to actual institutions in the world. This is a rare and enormously valuable trait. Moral philosophy, including (maybe even especially) moral philosophy about the nature and justification of punishment, can often remain extraordinarily abstract, parsing the nuances of semantics or logic without any consideration of what these parsings might mean in particular institutional contexts on the ground--the institutional contexts that lawyers inhabit and legal scholars study. Murphy, however, though entirely comfortable in the abstract world, is never content to remain there; his work constantly mediates between the realm of abstraction and the world of application. Murphy's concern with the moral philosophical foundations of punishment, for example, has produced both a serious exegesis of Kantian retributivism (1) and a serious challenge to the justice of our everyday practices of inflicting punishment on socially disadvantaged offenders. (2) Or consider one of Murphy's most recent works, which contains an extended treatment of apology and remorse as they relate both to J. L. Austin's treatment of "performative utterances" (3) and to such real-world settings as the work of the South African Truth and Reconciliation Commission (4) and the refusal of then-Governor George W. Bush to grant death-row clemency to Karla Faye Tucker. (5) What is harder to describe, but no less distinctive and important, is what I have called the "timbre" of Murphy's voice. In terms of style, his tone is conversational and attuned to the many ways we have of "knowing" moral or psychological truths. He frequently uses evocative passages from novels and poetry, examples from history (should repentant Nazis be forgiven?), and even New Yorker cartoons, a favorite reference of mine. But quite apart from his accessibility, and his ability to access our own intuitions through such references, Murphy is also a truly humble and modest thinker. These qualities are not mere window-dressing, or synonyms for an anodyne civility; rather, they are central to what is most estimable about his work: they represent Murphy's constant willingness to re-evaluate his past positions, refine them, refute them, and even question their origins in his own psychological make-up. Murphy's path from a "hard" to a "soft" retributivist, and from a skeptic of mercy to something less than a total skeptic, presents a model of rare and self-conscious intellectual revision. …