While mass incarceration in the United States has many causes,Footnote 1 the leading theoretical or conceptual one has been the turn toward retribution as the purpose of punishment.Footnote 2 As the pragmatic and moral catastrophe of this policy has become apparent, arguments against retribution have gained increasing force. One such argument is that a retributive approach is not directed toward the goal that most people desire for the criminal justice system, which is the reduction of crime. This has led to renewed interest in rehabilitative programs, often with the caveat that the U.S. criminal justice system should replace the naïve optimism of the pre-retributive era with empirically verified approaches.Footnote 3 A second argument is that retributivism is cruel and thus morally unacceptable in a society that values human rights and human individuality. This has led to renewed emphasis on mercy as a relevant consideration when determining the type of punishment deemed appropriate.Footnote 4
Unlike contemporary rehabilitative strategies, however, endorsements of mercy have tended to be vague or generalized.Footnote 5 If the U.S. criminal justice system is to draw upon this venerable concept to ameliorate its counterproductive harshness, we need to replace or perhaps amplify it with a framework or protocol that relevant decision makers can actually employ. Mercy is generally defined as the reduction or remission of a justified punishment.Footnote 6 Thus, the relevant decision makers in the U.S. criminal justice system are those who have the discretion to reduce or remit punishment: the judge or jury at the point when sentences are imposed; an administrative parole authority, whether staffed by professionals or citizens, during the time when a sentenced offender is incarcerated; and the chief executive or pardon board at any time following conviction. In most of the nation’s states, pardons are relatively rare.Footnote 7 Sentencing and parole decisions, in contrast, occur literally millions of times a year, and represent essential components of our criminal justice system.Footnote 8
Given that mercy is widely recognized as a religious concept, specifically one with biblical origins, the Bible could be a valuable source from which to draw the elements of a decision-making protocol.Footnote 9 Initially this does not seem to be a promising avenue for fashioning a workable strategy for decision makers such as sentencing judges or parole boards. Government in most Western democracies is regarded as a secular function, dominated by pragmatic rather than aspirational or emotive considerations. Offering pithy quotations from scripture, however sonorous (“The Lord is merciful and gracious, slow to anger, and plenteous in mercy;”Footnote 10 “Blessed are the merciful, for they will receive mercy”Footnote 11) does little to remedy this apparent irrelevance of religious doctrine.
But the religious tradition is too central to the concept of mercy to be peremptorily dismissed. Without it, the concept becomes attenuated and threatens to dissipate into empty rhetoric. There are, however, sources of guidance provided by the Bible that are more promising than verses offered in isolation from their context. These are the narratives that have become the basis for one of the current interpretive strategies for understanding the Bible. The narrative or literary approach to biblical interpretation,Footnote 12 as developed by some of its leading advocates, is not a secularization of scripture, an effort to reduce the text to aesthetics or dismiss it as fiction. The idea, rather, is that much, although obviously not all, of the Bible, takes the form of narrative, and that such narratives are the medium by which many of its most profound and instructive principles are expressed.Footnote 13
One great advantage of relying on biblical narratives is that they locate the possibility of mercy in a decisional context, with the treatment of a specific offender at stake. Many of these narratives of punishment and mercy, moreover, are among the best-known and most vivid passages in scripture and have clearly played a major role in fashioning current concepts. The point here is not to assert that these passages necessarily constitute revealed truth, nor that the US criminal justice system should be governed by general principles of Jewish or Christian religion.Footnote 14 Instead, it is that an analysis of these passages offers a way to interrogate deep-rooted cultural attitudes and perhaps discern embedded patterns and meanings that have not been previously apparent in discussions about mercy in contemporary settings. Through this process, the U.S. criminal justice system may be able to develop strategies by which a concept inherited from religious tradition can be usefully applied by secular decision makers such as judges and parole boards to reverse the current frenzy of punitive excess.Footnote 15
Reference to the concept of mercy naturally suggests the closely related concept of forgiveness, which is equally prominent in the biblical text.Footnote 16 To the extent that the two terms are not being used interchangeably, a distinction might be made between mercy as the reduction or elimination of punishment for a wrongful act and forgiveness as the cancellation of the wrongful act itself.Footnote 17 An alternative is to treat mercy as the action of someone who wields power, and forgiveness as an element of interpersonal relationships, as Hannah Arendt suggests.Footnote 18 These two distinctions would then overlap to the extent that it is the government that possesses the power to punish. Thus, governmental actions that are described as mercy— specifically mild sentencing, parole, and pardon—reduce punishment but are necessarily based on a conviction and do not eliminate it. Forgiveness is a personal assurance that the action in question will be ignored or forgotten and thus can be extended to actions that are not criminally punishable, such as insensitivity or infidelity.Footnote 19 While such distinctions are somewhat difficult to maintain when the decision maker is omniscient and omnipotent, it is at least possible to argue that God extends mercy when the individual violates a divine command, whether stated as a general rule or a particularized instruction, and extends forgiveness when the individual has strayed from a proper relationship with God. Whatever its theological complexities, this approach enables us to recognize biblical acts of mercy that are analogous to the decisions of government decision makers in the U.S. criminal justice system when faced with an individual who has disobeyed the government’s commands.
Some of the most famous biblical passages where mercy is at issue—the expulsion from the Garden, the punishment of Cain, the aftermath of the Deluge, Christ and the adulteress, and the prodigal son— reject contrition or gratitude by the wrongdoer or compassion by the decision maker as the essential elements of mercy. Instead, they embody a decision protocol consisting of the decision maker’s direct interaction with the wrongdoer, self-control over emotions such as anger or indignation, and consideration of collateral consequences. This concept of mercy is developed most fully in the book of Jonah. While often disparaged as a satire or the account of a minor prophetFootnote 20 this text in fact provides a profound understanding of the way that mercy functions in the context of a legal system. Its insights can serve as a guide in applying the biblical concept of mercy to policy decisions in the U.S. criminal justice system, specifically traditionally discretionary decisions on sentencing and parole.
The Biblical Concept of Mercy
Biblical Narratives of Mercy
Retributivists are fond of quoting the biblical formulation of the lex talionis, “an eye for an eye, a tooth for a tooth.”Footnote 21 Donald Trump identified it as his favorite biblical passage.Footnote 22 The context suggests that this notorious phrase was not intended to be taken literally,Footnote 23 and in any case it is repudiated by Jesus in the Sermon on the Mount,Footnote 24 a passage apparently unfamiliar to Trump. Mercy, in contrast, is a consistent theme in scripture, not only because it appears in a number of well-known passages, but because these passages are related to each other in articulating and developing a unified concept.
The concept of mercy that appears in scripture, however, is quite different from the prevailing one in common or popular discourse. After Adam and Eve have eaten the fruit from the tree of knowledge of good and evil,Footnote 25 and God has imposed severe punishment on them, God’s next action is apparently merciful: “And the Lord God made skin coats for the human and his woman, and He clothed them.”Footnote 26 After God punishes Cain for killing Abel,Footnote 27 Cain objects that “whoever finds me will kill me.”Footnote 28 God responds by saying: “Therefore, whoever kills Cain shall suffer sevenfold vengeance,” and puts “a mark upon Cain so that whoever found him would not slay him.”Footnote 29 While God saves Noah from the Flood, this is an act of justice, not mercy because Noah (apparently alone among humanity) has done no wrong. But it is possible to view God’s promise to Noah after the flood as an extension of mercy to all humanity. God promises that “never again shall all flesh be cut off by the waters of the Flood”Footnote 30 and gives humans two benefits—they can eat meat and they can punish wrongdoers—and creates the rainbow as a sign of his promise.
In the Gospel according to John, the Pharisees bring an adulteress into Jesus’s presence. Hoping to trap him into a theological error, they say “in the law Moses commanded us to stone such women. Now what do you say about her?”Footnote 31 Jesus answers: “Let anyone among you who is without sin be the first to throw a stone at her.” The Pharisees withdraw, “one by one,” and leave Jesus alone with the woman. Of course, Jesus has, by his admonition to the Pharisees, authorized himself to stone her, since the one way in which his human form differs from any other human is that he is without sin. He declines to do so; after asking her, “Woman, where are they? Has no one condemned you?” she only answers “No one, sir.” He then says, “Neither do I condemn you. Go your way, and … do not sin again.”Footnote 32
The story of the prodigal son in the Gospel according to Luke is a parable told by Jesus to those same Pharisees.Footnote 33 It features the younger of an ordinary man’s two sons who demands his share of his father’s inheritance, then goes off and squanders it. Destitute, he returns to home and apparently expects to be treated harshly. But the father greets him warmly, orders the “fatted calf” to be prepared for a celebratory dinner, and declares: “my son was dead and is alive again; he was lost, and is found.”Footnote 34 The older son objects, saying “Listen! For all these years I have been working like a slave for you, and I have never disobeyed your command; yet you have never given me even a young goat, so that I might celebrate with my friends.” The father reassures him that “all that is mine is yours” but reiterates his joy at his son’s return.Footnote 35
The Biblical Decision Protocol
These passages provide an instructive analysis of mercy as a practicable basis for the exercise of punitive power. The first thing to note is that contrition, typically demanded in the criminal justice system as a precondition for mercy,Footnote 36 is absent from the biblical presentation of mercy. When Adam is accused of eating the fruit, he does not say “I’m sorry,” but rather, “The woman whom you gave by me, she gave me from the tree,” thus managing in a brief response to blame both God and Eve. Eve is not sorry either: she says, “The serpent beguiled me.”Footnote 37 Cain’s defiant “Am I my brother’s keeper” is followed, after God declares his punishment, only by the complaint, “My punishment is too great to bear.”Footnote 38 In the Flood story, God promises to desist from further destruction of humans and grants significant benefits to them without their taking any further action.Footnote 39 Jesus forgives the adulteress without demanding any admission of guilt, only her recognition that her accusers have departed. The prodigal son feels deep contrition, and returns home to express it, but the text explicitly states that “when he was yet at a distance, the father saw him and had compassion.” Obviously, the point of the story is the nature of divine forgiveness, not the behavior of some Middle Eastern farmer,Footnote 40 but its presentation as a parable, with mercy being extended by an ordinary man, not God, precludes any possibility that the father knew his son was contrite when seeing him at a distance. This feature of the story is underscored by two preceding parables that Jesus offers in response to the Pharisees, the first involving a lost sheep and the second a lost coin. Their function is to focus attention on the pleasure of the person who has found the lost item, and they preclude contrition by that which has been lost, since sheep and coins do not have moral feelings.
This lack of concern about contrition is instructive on both moral and pragmatic grounds. Morally, to demand contrition is to require submission, to compel wrongdoers to abase themselves before the decision maker.Footnote 41 It is a form of domination, not a genuine extension of mercy. Pragmatically, demanding contrition encourages strategic behavior because it is based on the internal state of the wrongdoer that may be transparent to an omniscient deity but is not directly observable by a human decision maker. Wrongdoers, acutely aware of what the decision maker is demanding, will have every incentive to misrepresent their internal beliefs.Footnote 42 In fact, one might conclude that the less contrite they actually are, the more they will engage in carefully rehearsed, extravagant displays of contrition.Footnote 43
A second emotion that seems absent from the biblical accounts is gratitude on the part of the wrongdoer upon receiving merciful treatment. It is perhaps not surprising that Adam and Eve do not thank God for the suit of clothes after the ferocious punishments that have been imposed on them, but Cain also does not express gratitude after God moderates a deserved punishment, and the adulteress says nothing after Christ tells her that he will not condemn her. In the prodigal son story, there is a rather extended internal monologue by the son about his contrition and his sense of sin before he returns,Footnote 44 and he expresses contrition in his initial speech to his father,Footnote 45 but the text provides no statement from him after he has been welcomed back, only the complaint by the resentful older son. Noah builds an alter to God after the Flood, but this is not exactly gratitude for mercy since Noah is not a wrongdoer and Noah’s act, particularly with its somewhat odd Babylonian reverberations (“the Lord smelled the fragrant odor”) seems more like a propitiatory sacrifice than an expression of gratitude.Footnote 46 This lack of emphasis on gratitude may be seen as related to the absence of concern about contrition. Gratitude is also an expression of subordination. As Douglas Hay notes in a well-known essay, the ruling class of early modern England legislated an excessively harsh set of criminal punishments, and then used the frequent extension of mercy as a way to induce gratitude among the lower classes, thus securing their subservience.Footnote 47
One further emotion that does not appear, or at least is underemphasized, in the biblical accounts is compassion for the wrongdoer. It is not mentioned in any of the quoted passages as a motivation for God’s extension of mercy. In fact, the motivation for mercy is only given in the story of the prodigal son, a passage with a human decision maker, and there the feeling of compassion seems primarily driven by a different emotion, which is joy over the return of something that has been lost. This seems surprising, particularly given the etymology of the word for mercy in the biblical languages. In Hebrew, it is rehamim, the plural of womb, and thus reflective of a mother’s love, while in Greek it is eleos, personified by a god whose attributes included compassion and pity. The Latin word, certainly relevant for subsequent religious writing, is misericordia, which refers to a pitying or compassionate heart. These derivations are applicable to many of the statements, declarations, or poetic usages in the Bible regarding mercy, but the interpretive stance that has been adopted here is a narrative one, where the concept has been extended and ramified through action accounts that are not necessarily governed by the etymology of the terms being used.
It may seem tempting to read compassion into the biblical narratives regarding mercy, but such a reading, whatever its entomological or metaphysical validity, is problematic if we approach these passages as a model for human decision making. Is the decision maker supposed to feel compassion for the wrongdoer as a human being? If so, it would apply equally to every wrongdoer, which seems inconsistent with the concept of mercy. Or is it compassion with respect to some sense of connection between the decision maker and the wrongdoer? That may be a valid basis for personal forgiveness, but when exercised by a government decision maker as the basis for mercy, that is, reduction of a deserved punishment, it creates the danger of bias or favoritism. People often feel compassion on the basis of demographic similarity, an ability to see themselves in the place of the wrongdoer because they belong to the same religion or race. That sort of good fortune for certain wrongdoers—that they belong to the same class or race or religion as the decision maker—is hardly a desirable basis for decision making in a democratic and egalitarian polity.
Instead of contrition by the wrongdoer, or compassion for the wrongdoer, the basis of mercy as presented by the biblical accounts involves the thinking processes of the decision maker. It is, in fact, a sort of protocol for the extension of mercy, and consists of three principal steps. The first is a direct interaction between the decision maker and the wrongdoer. Mercy, unlike justice, is an individualized determination. A rule giver, whether divine or human, can prescribe punishment on the basis of a general description, and we can declare such punishment to be just or (in the case of the human rule giver) unjust. But mercy requires that this general rule be modified in some way, and the modification results from an individualized and direct interaction. Interestingly, the biblical accounts do not specify the basis on which the decision maker is supposed to make this individualized determination. As in the case of broad constitutional guarantees like free speech or due process, the structure is established and then further specification is left to the decision maker’s discretion at the time and in the circumstances of the decision. Perhaps compassion, if properly controlled, is useful, but its value depends on many immediate factors, including the legal system under which the decision maker is operating. What the biblical narratives suggest is that any such considerations can only be activated in a direct interaction between the decision maker and the transgressor.
There are, however, two specific recommendations about this interaction that can be derived from the biblical narratives, and these constitute the second and third steps in the protocol. The second step in the protocol is that the decision maker should exercise self-control in this interaction, and not act on the basis of fear, anger, or self-righteous indignation. Emotions such as these, while natural when confronting a wrongdoer, are out of place for a government official with the power to punish because they represent an abuse of that power. They necessarily reflect the personal feelings of the decision maker, and the decision maker is not granted punitive power to satisfy his or her personal feelings, but to carry out a public function. To act upon one’s personal feelings when functioning in an official capacity is an inappropriately selfish act, akin to taking a bribe. This same demand for self-control, and prohibition against satisfying one’s personal feelings, also accounts for the lack of emphasis on compassion as the basis for mercy. Like fear, anger or indignation, compassion is an emotional response, an expression of perhaps more admirable but nonetheless equally personal reactions. As stated above, such reactions may be based on bias or favoritism. They may lead to desirable results, but only if the decision maker is aware of his or her motivations and subjects them to strict control in accordance with this second step in the protocol.
The third step is for the decision maker to determine whether the prescribed or modal punishment will have negative consequences that are either unintended or collateral. This recognizes that punishment is not a purely moral judgment, but a legal action by a person who wields public power. All the standard justifications for punishment are based on the belief that the punishment will produce positive consequences for society, typically by reducing the crime rate. Even retribution is thought to benefit society by establishing a regime or atmosphere of justice. Negative consequences of punishment thus stand on the same moral footing as its justifications. If punishment is imposed because it produces good results for society, then it should also be modified when it produces bad results, results that either have negative pragmatic consequences or offend our sense of justice.
The Protocol as Embodied in the Biblical Accounts
With regard to the first step in the protocol, the passages where mercy is actually extended generally involve a direct interaction between God and the human transgressor or, in parables, the human who represents God and the transgressor. The Bible, in addition to laws or rules for behavior, contains a number of general statements about mercy, but nearly all simply declare it a virtue, rather than specifying the conditions on which it will be granted. In contrast, when the Bible depicts the actual operation of mercy as part of a narrative, that is, when it provides specific cases that can serve as guidance for human decision makers, it features an immediate relationship between God (or a figure representing some aspect of God) and the wrongdoer.
God provides clothing for Adam and Eve immediately after confronting them about their sin and imposing punishment. God grants Cain the protective mark in immediate response to Cain’s objection about the severity of his punishment. Jesus extends mercy to the adulteress in a face-to-face interaction, after he has induced all the other people to depart. He explicitly notes that her accusers are gone, obtains her recognition of this fact, and then says that he does not condemn her, even though he identifies her action as a sin. The father interacts directly with the prodigal son. He extends forgiveness before learning anything new about his son’s feelings or behavior, but not until he sees his son in person.
If God’s promise to Noah not to send another Flood is interpreted as mercy, it seems to be an exception, for it applies to all humanity. But it is stated in a personal interaction with Noah, who is in fact the head of the only household that has survived the Flood. Moreover, and perhaps more significantly, God’s mercy is not only the promise to desist from further deluges, but also to grant humans a dual benefit: “All stirring things that are alive, yours shall be for food[,]”Footnote 48 and “He who sheds human blood[,] by humans his blood shall be shed.”Footnote 49 The reference to blood as the linkage between the power to eat meat and the power to punish seems reminiscent of archaic taboos, but the theological connection may be that humans now have the awesome power to kill other living creatures, a power that previously belonged only to God. The power to punish is thus a divine power, which implies that humans should follow God’s instructions in implementing it.Footnote 50 They should be just but should also allow for the extension of mercy by interacting directly with the person being punished, as God has done in the past (Adam and Eve, Cain) and will do in the future.
The biblical accounts are somewhat elliptical in describing the basis for God’s mercy, but they proceed to a highly specific requirement—the second step in the biblical protocol -- that the decision maker should control his or her emotions through a process of self-reflection. Having heaped a truly formidable set of punishments on Adam and Eve, apparently in anger, God provides an explanation, perhaps to the immortal angels: “Now that the human has become like one of us, knowing good and evil, he may reach out and take as well from the tree of life and live forever.”Footnote 51 God seems to be justifying the punishment by a reflective appeal to logic. The implication is that the punishment is justified by God’s subsequent reflection, and that anger is not a sufficient basis. God reacts with anger upon realizing that Cain has killed Abel, but modifies the imposed punishment after Cain raises objections. It is possible that God has recognized the negative influence of anger from his advice to Cain, which immediately precedes Cain’s crime and punishment. Cain is angry because God has rejected his sacrifice. God says, “Why are you incensed … For whether you offer well, or whether you do not, at the tent flap sin crouches and for you is its longing but you will rule over it.” After Cain objects to the harshness of his sentence, God, in effect, takes the advice offered to Cain.
In the Flood story,Footnote 52 God promises to never send another flood and provides the rainbow as “the sign of the covenant that I set between Me and you.”Footnote 53 In contrast to the Sunday-school version that the rainbow is intended to reassure humans that God will not send another deluge, its purpose is for God to engage in self-reflection.Footnote 54 The thought behind this seems to be that God wants reflection to precede action, that God, before sending another flood will see the rainbow and desist.
A question that arises is exactly what it means for an omniscient deity to engage in self-reflection and change an intended course of action. This is obviously connected to the more general interpretive problem that the Genesis passages seem to depict a non-omniscient deity.Footnote 55 But the metaphysical problems that this issue raises are not of concern in the present discussion, which focuses on the Bible’s message for human decision making. There is no need to rely on the somewhat vague and generally intimidating notion that moral action by human beings consists of the imitatio Dei, that is, modeling one’s actions on what one imagines God or Christ would do.Footnote 56 The point, rather, is that the Bible contains specific instructions for human decision makers, that its message about mercy is primarily a form of instruction or education for human beings as non-omniscient creatures.
In both of the New Testament stories, the people with the wrong approach are the Pharisees. They are the ones who want to stone the adulteress, and the prodigal son parable is Jesus’s response to an accusation by the Pharisees that he “receives sinners and eats with them.”Footnote 57 The Pharisees emerged out of a complex political and religious situation in Judaism,Footnote 58 but their defining issue, at least as they are depicted in the gospels of Luke and John, is strict obedience to the law.Footnote 59 In other words, they are what we would call self-righteous or indignant. In opting for mercy, Jesus rejects this inclination. The message for human decision makers is that they should consider doing the same in their process of self-reflection, even when dealing with a definite wrongdoer.
Jesus’s insistence on self-reflection occurs directly in the narrative of the adulteress, when he confronts the Pharisees with a reminder of their own sinfulness and induces them to desist. In the prodigal son narrative, he responds only with a parable, since he is answering an abstract accusation, not opposing an intended action. But his answer has the Pharisees speak within the parable in the form of the elder son. The son is angry, and the basis for his anger is a self-righteous or indignant demand for justice, thus blending both emotions that might counteract mercy.Footnote 60 The father’s response preserves the demands of justice, but rejects self-righteous anger. While he validates his elder son’s right to inherit after his death, he insists that this does prevent him from showing mercy to his younger son while he is alive.
The third element in the biblical protocol is to consider the collateral consequences of the punishment. Even if the decision maker believes that the punishment itself is justified, the question he or she must ask is whether it will have additional consequences for the offender or for others who are not directly liable for punishment. In the Eden account, God recognizes that Adam and Eve need clothing immediately, if only because of their new-found sense of shame, and that they are unlikely to be able to make clothes for themselves at this early stage (particularly, as we learn from the Flood story, because they are not allowed to kill animals for their own use). In the Cain and Abel narrative, God realizes, after Cain’s objection, that Cain is likely to be killed, and so provides him with protection.Footnote 61 God does not want humanity to suffer successive catastrophes, a feature of many of the Middle Eastern myths from which the Flood passage derives. Jesus does not believe an adulteress deserves death, his strictness about this sin in the Sermon on the Mount possibly arising from concern about the abandonment of women.Footnote 62 And it would be unnecessarily harsh to readmit the younger son into the family but insist that he live in penury.
The Book of Jonah
All these elements of mercy are presented and then elaborated in the book of Jonah. Most people only know, or remember, that Jonah was swallowed by a fish. Biblical scholars are often dismissive, treating this book as intended to be humorous,Footnote 63 claiming that one of its four chapters is a subsequent interpolation,Footnote 64 or speculating that its primary purpose is political, either to authorize Jewish proselytizing or to warn the Jewish people to alter their behavior.Footnote 65 While there may be some support for aspects of these arguments, they distract us from the main theme of this tightly constructed masterpiece of religious literature. The book of Jonah is a profound inquiry into the role of mercy in a legal system, one that illuminates complexities that are only implicit in the other biblical narratives. It is, after all, the text that is read in the synagogue on Yom Kippur, the Jewish Day of Atonement and the holiest day of the year.Footnote 66 Moreover, Jesus compares the three days between his crucifixion and his resurrection to Jonah’s three days in the fish,Footnote 67 an odd analogy if the book of Jonah is intended as a satire. Jonah is typically classified as one of the minor prophets, which may be historically correct,Footnote 68 but suggests another misreading of the text.Footnote 69 His task is prophecy, to be sure, but unlike the books of Amos, Micah, or Joel, the book does not consist of the eponymous actor’s words of prophecy.Footnote 70 Instead, it is best interpreted as a narrative of God’s moral instruction of Jonah, instruction about the nature of mercy that is relevant to anyone in a position to exercise it.Footnote 71
The book is divided into four chapters, although the division dates only from the Middle Ages. The first begins with God’s command to Jonah: “Get up, go to Nineveh the great city, and call out against it, for their evil has risen before Me.”Footnote 72 Jonah tries to escape this command by going to sea—in a ship with a gentile crew no less.Footnote 73 When God sends the storm, “Jonah had come down to the far corners of the craft and had laid down and fallen deep asleep.”Footnote 74 The shipmaster wakens him, saying, “What meanest thou, O sleeper? arise, call upon thy God.”Footnote 75 These words are reminiscent of God’s original command to Jonah, and one commentator concludes from this that the shipmaster is in a position parallel to that of God.Footnote 76 But there is nothing else in the text to suggest this. An alternative reading is the reverse, that God has assumed a position equivalent to the shipmaster. Instead of compelling Jonah to go to Nineveh, God merely gives an order, reserving to Jonah the ability to disobey. As in the case of God’s command that Abraham sacrifice Isaac,Footnote 77 the purpose is to provide moral instruction to the person who receives the command.
Jonah’s response to the shipmaster’s command, once the drawing of lots reveals that he is the cause of the storm, is to urge the sailors to throw him overboard. In his analysis of the Isaac story, Kierkegaard points out that if we want to take the Bible seriously, we need to recognize its principal figures as real people, who must act with the same uncertainty about the future as ourselves.Footnote 78 We should thus understand Jonah’s response as indicating that he is both a moral person and a truly courageous one, willing to have himself thrown into a stormy sea rather than endangering innocent people, even though they are strangers to him, and gentiles besides.Footnote 79 Having been wakened from his somnolence, he acts in an admirable manner. In other words, like Abraham, he is a deeply moral person whose further moral education will reveal new insights to us all.
Jonah is then swallowed by “the great fish.” The second chapter consists of Jonah’s prayer. It issues “from the innards of the fish” but Jonah is not in the fish.Footnote 80 According to his own words when he prays to God, he is in “Sheol.”Footnote 81 Whatever Sheol may have been in other Jewish stories or beliefs,Footnote 82 it is not some version of hell, that is, the afterlife, because Jonah is not dead. Rather, according to the prayer, Sheol is the place of moral darkness.Footnote 83 The imagery is powerful: “The waters closed in over me, the deep engulfed me. Weeds twined around my head. I sank to the base of the mountains. The bars of the earth closed around me for ever.”Footnote 84 The fish is merely a portal through which Jonah has descended into this dreadful situation.Footnote 85 He now understands that to separate oneself from God, as he tried to do, is to condemn oneself to despair, to a life devoid of meaning.Footnote 86 In response, he promises to sacrifice in the temple, the most direct way of expressing one’s connection to God, and God, in an act that Jonah describes as “rescue,”Footnote 87 allows him to pass back through the portal into the world of meaning and reverence.
The third chapter begins with virtually identical words as the first; this will be Jonah’s second lesson. Now he obeys and goes to Nineveh. Political and historical interpretations focus on the fact that Nineveh is a gentile city, or that it was the capital of the empire that conquered the northern part of Israel, but it appears in the book of Jonah as an imaginary place. To begin with, it has a “king,” too grandiose a title for the ruler of a city. Still more strikingly, it is “a three days walk across” in extent and God says that it has 120,000 young children (people “who do not know between their right hand and their left”).Footnote 88 This is a mythic scale, as there were no cities in the ancient Near East that were sixty to ninety miles across and had over one million people.Footnote 89 Jonah delivers his prophecy, reported in a single peremptory sentence (“Forty days more, and Nineveh is overthrown”) and the people are immediately contrite. All of them, including their king, put on sackcloth, sit in ashes, and proceed to fast. The king even orders the livestock to fast.
Chapter 3 ends with what appears to be the result of their efforts: “And God saw their acts, that they had turned back from their evil way; and God relented from the evil that He said to do to them; and he did not do it.”Footnote 90 This appears to be a strong assertion that God’s mercy is a response to the people’s contrition, but the passage contains several oddities that should lead the reader to question a literal interpretation. First, the notion that God would repent seems inconsistent with divine omniscience, a problem that appears in Genesis, as noted above, but less so in the Prophets or the Writings. Even more strangely, God’s intention to destroy Nineveh is described using the same word—“evil”—as the sinful behavior of the people God intended to destroy. Moreover, this is the only passage in the book that purports to explain God’s motivation. Other passages report God’s actions,Footnote 91 but we only hear God’s intentions when speaking to Jonah. The reader thus has cause to wonder who is authoring this passage, who has concluded that God intended “evil” and then repented. It is at least possible that the writer is Jonah, that it is his interpretation of the reasons for God’s actions, particularly given the immediately following line in chapter 4 that records Jonah’s emotional reaction: “And the thing was very evil for Jonah, and he was incensed.” In other words, Jonah feels betrayed, and that God’s refusal to do the evil Jonah was required to predict is evil for Jonah. Again, this attribution of evil to God sounds like Jonah’s voice, not God’s.
This fourth chapter carries the book’s real message, which is about the intrinsic dilemma of mercy. For the first time in the book, Jonah and God engage in an interaction about the relationship between punishment and mercy.Footnote 92 It begins with Jonah telling God that he knew God would relent, being a gracious and merciful God, and would not do “evil.” We now learn that Jonah is not only a moral and courageous person, but an insightful and reflective one as well. He fled, it turns out, not because he thought he could evade God’s command by leaving Israel but because he wanted to escape from a conceptual dilemma, a concern that he apparently expressed to God upon receiving the command in a previously unreported conversation that is almost certainly an intentional omission from the text.Footnote 93 He knew that God would ultimately spare Nineveh, and he was right. Now this contradiction confronts him: he has learned that he must obey God, but God has not created a universe that operates by fixed rules that are readily understood. In other words, he believes that God has placed him in an impossible existential position.Footnote 94 That is the reason why he says he wants to die.Footnote 95 Interpretations that regard Jonah as inferior to the gentiles,Footnote 96 or as some sort of innocent who is being teased by GodFootnote 97—generally the interpretations that see the book as humorous—minimize the moral significance of Jonah’s dilemma, a dilemma that confronts every moral person.
God does not respond to Jonah’s quasi-accusation directly, but instead asks him, “Are you good and angry?”Footnote 98 Jonah then sits on a hill outside of Nineveh and God makes a plant to shield him from the sun, then causes the plant to wither.Footnote 99 The sun beats down on him again, and again he says he wants to die. This seems like an overreaction. We might ask why he does not buy a hat. But the point, once again, is that he cannot rely on God, who he must obey, to be bound by fixed rules.Footnote 100 Whatever can be said about earlier passages in scripture, God is depicted here as both truly omniscient and omnipotent,Footnote 101 and God’s apparent change of heart has confronted Jonah with a devastating dilemma of theodicy.
God’s response is to point out to Jonah that he feels pity for the plant, and then asks him: “And I, shall I not have pity for Nineveh the great city, in which there are many more than one hundred twenty thousand human beings who do not know between their right hand and their left, and many beasts.”Footnote 102 The story has now moved from actual events to parable or allegory, but it is an allegory set within a narrative presentation. It is easy to picture a prophet telling the story of the plant to an audience. Because the storyteller is God, he can use an actual plant instead, but the meaning of the events obviously has nothing to do with foliage. As with the fish, the point is to instruct Jonah. He has done no further wrong—he preached to Nineveh as ordered—but he still lacks understanding. The plant is designed to teach Jonah (and the reader) about the nature of mercy, an important lesson now that humans have the power to judge each other, as announced in the Flood story.
As it turns out, God did not spare Nineveh for the reason Jonah thought, which is that the people were contrite; in this final passage, their extravagant contrition is never mentioned. Instead, God takes Jonah through the three steps of the decision protocol developed in the other, less detailed biblical accounts. The first is direct interaction. This is clearer in the other accounts; here, it is implied by the structure of the story, rather than being stated explicitly. When Jonah fled to the sea, his motivation, as revealed in chapter 4, was not that he was reluctant to go to Nineveh or to preach destruction to the people, but rather than he did not want to confront them directly with a punitive message when he knew that God would show mercy to them by reversing that message. God’s response to Jonah is clear: By your unwillingness to confront the people of Nineveh, you have cast yourself into moral darkness. Go to Nineveh, deal directly with the people, and accept the fact that the threatened punishment will not be carried out.
The next step is self-reflection. God tells Jonah to control his anger twice, first in response to Jonah’s accusation that God has asked him to prophesize a fate that will not occur, and second when he sees the plant wither. Contrary to some commentators,Footnote 103 there is no indication that Jonah is cruel or insensitive and wants God to carry out the threatened punishment. What has incited Jonah’s anger is that God has subjected him to incomprehensible contradictions.Footnote 104 Why did God command him to preach destruction to a city God did not intend to destroy; why did God send a plant to protect him only to destroy it immediately afterward? This leads to the second step in the protocol, which is that Jonah, when he is making a decision, should control his emotions. God implicitly asks Jonah: If you had my power, would you really destroy Nineveh because you preached its destruction? It is a rhetorical question: someone who was willing to sacrifice himself to save a few sailors would not demolish a gigantic city. Given his inherently moral nature, God is suggesting, Jonah should realize that his emotional reactions need to be controlled.
The final element in the decision protocol is for Jonah to think about the consequences of punishment. God implicitly asks Jonah: Would innocent people be hurt if the legally authorized punishment had been imposed? What about the blameless children who would die in a Sodom-like conflagration? What about the animals, toward which humans owe the herdsman’s ethic of care?Footnote 105 And (perhaps) what about the innocence that resides along with sin within every wrongdoer? Even gentiles, God says implicitly to Jonah, namely, those whom you regard as other than yourself, have such innocence, and can respond to less punitive warnings, as the sailors, the people of Nineveh, and you yourself have responded to mine.
Then God provides his final lesson, which can be understood as saying: There is indeed, a basic conflict between the mercy I am recommending and the rule of law that I have established. As a post-deluge human decision maker, you have my power to punish. But in using that power, you must also exercise my ethic of mercy as well. Because mercy represents a modification of the legal order, I cannot give you a legal rule to govern it, at least in the non-omniscient form in which I have created you.Footnote 106 You must be willing to confront the existential dilemma that these contrasting principles of law and mercy create. When you are placed in the role of a judge, you cannot run away from them, either by taking a job as a sailor or by resigning and opening up a plant store. You must confront the person you intend to punish as an individual, every time you exercise the awesome power of punishment that I have granted you. You can then take account of whatever reasons for mercy occur to you. But in doing so, you must recognize your anger and control it. In addition, you must think about the consequences of your actions as a moral being of your own and not just as an instrument of law. You must then come to a resolution in each case based on these considerations that are constantly present and never fully reconcilable.
Thus is the challenging and demanding moral message of the Jonah narrative. A number of thoughtful scholars, including Jacob Adler, Albert Alschuler, R.A. Duff, Nicole Hartmann, Jeffrie Murphy, and Miroslav Volf,Footnote 107 have offered solutions to the age-old dilemma of balancing justice and mercy. What the book of Jonah tells us is that this dilemma cannot be definitively resolved, that it will confront moral decision makers whenever they exercise the power to punish that God has bestowed on mere and fallible humans. That is the basis of the other famous omission in the book, which is Jonah’s response to God’s explanation for sparing Nineveh.Footnote 108 There is no response that Jonah can provide, because God’s message is that there is no general, universally applicable solution. This message should not be taken as a rejection, or even a disparagement, of the scholarly work regarding mercy; rather, it suggests that the scholarship is part of the complex process by which we, in our society, grapple with a question that must be continually faced anew. God will not resolve this problem for the intense, morally courageous person who is being instructed in the book of Jonah, and through whom we are being instructed as well. Instead, God offers a decision protocol by which we can control our feelings and channel our thoughts in the process of striking our own balance between justice and mercy.
Translating the Bible: A Protocol for Modern Decision Makers
As stated at the outset, the biblical accounts of mercy, when interpreted in accordance with their narrative structure, provide a decision protocol that can serve as an antidote to the punitive excesses that continue to dominate the U.S. criminal justice system. The protocol is most relevant for decision makers in this system who possess the discretionary authority to reduce or remit punishment, specifically sentencing judges and parole boards, but also chief executives and pardon boards, and perhaps police and prosecutors. As a practical matter, however, merely urging existing decision makers to nurture different attitudes may not be a promising strategy for intervention, particularly when the appointment process for these officials has been dominated for so long by a tough-on-crime mentality. The preferable point of entry is at the policy making level. Legislators and administrative leaders, with a broad view of the system’s malfunctions and inefficiencies, can adjust the rules that control discretionary decisions and the criteria by which these rules are applied. To be sure, they are themselves subject to various harsh instincts and external pressures, but they are in the best position to exercise control over the system, and perhaps they can finally be persuaded that the ethic of personal responsibility that they are so eager to impose on young and disadvantaged offenders applies also to their own performance.
Each of the elements in the decision protocol provides recommendations at the policy level. The interaction element forbids mandatory sentences. Our system is set up so that the presiding judges at criminal trials can deploy their general experience about the subject matter and their particularized knowledge of the defendant to determine the sentence within a legislatively specified range. The movement for mandatory sentencing in the United States has not led to equity but to inequitable harshness,Footnote 109 and it is one of the reasons why the independent World Justice Project ranks the United States below not only the Scandinavian nations, but also below Estonia, South Korea and Uruguay.Footnote 110 U.S. judges regularly express distress about the way that mandatory sentencing compels them to impose prison terms they find manifestly unfair or unreasonable.Footnote 111 Their reaction may be based in part on the general human desire to be in control, but their explanations focus on the way in which mandatory sentencing precludes mercy.
Just as mandatory sentencing denies trial judges the ability to confront the offender directly, sentences without the possibility of parole deny this ability to parole boards.Footnote 112 Here again, the biblical protocol of mercy would forbid policy makers from prescribing such sentences. Even when parole is permitted, and a parole board established to meet with individual inmates, the element of direct interaction is often absent. In response to mass incarceration, policy makers have tended to repurpose parole as a means to relieve institutional overcrowding, which has in turn led boards to ignore the requests of inmates who fail to meet pre-established criteria.Footnote 113 Instead, volunteer parole boards should be replaced by professionals trained to listen attentively to the individual inmates. Only then, according to the biblical narratives, is there a possibility of mercy.
The next step in the biblical protocol is for the decision makers, whether judges or parole board members, to control their emotional reactions and open themselves to considering factors that relate to the offender, not to their own feelings. While emotional reactions may operate to the advantage of the offender, that result is more properly described as favoritism, not mercy. What the biblical narratives recommend is that the decision makers focus on the characteristics of the offender.Footnote 114 Policy-makers might encourage such self-discipline by requiring decision makers to consider specific mitigating factors, such as the youth of the offenders or their social disadvantages. They can also require judges and parole boards to consider whether the particular crime lies on the border of justifiability, like an assault in response to extreme provocation, or one where the injury inflicted is close to accidental.
Some scholars have suggested that legislatures or sentencing judges can properly make decisions that reflect or embody public anger about crime.Footnote 115 This would appear to allow decision makers to assert that in imposing harsh sentences, or rejecting merciful modifications, they are not acting on the basis on their own emotions, but rather implementing the desires of the citizenry in a manner consistent with democratic governance. As an initial matter, the argument seems insincere. It is typically advanced by political conservatives who express skepticism about government activism in other areas. Why are these advocates of anger not equally supportive of regulatory policies that express public hostility toward environmental degradation or inequality of income? But even if we ignore such inconsistencies, the question arises about how this process of anger transmission is supposed to function. Can the decision makers distinguish between anger based on valid concerns for personal or public safety and anger based on motivations that are morally unacceptable, such as racism or classism? Do they have the survey capacities to determine the extent of public anger and the strength of countervailing views? Do they possess the sociological sophistication needed to determine whether public support for punishment is truly based on anger about crime as opposed to a Durkeimian desire to reinforce collective norms that prevent social change?Footnote 116 Most important, do we truly want a government, which conservatives and progressives agree possesses coercive and potentially oppressive power, to act on the basis of primordial emotions instead of thoughtful and pragmatic reflection?
Once sentencing judges and parole boards have interacted directly with the offender, and suppressed their personal emotions, the final step in the biblical protocol is to consider collateral consequences. Just as God urged Jonah to recognize that destroying Nineveh would kill 120,000 innocent children, and a lot of cattle, policy makers should recognize that mass incarceration in the decidedly non-mythic United States injures even larger numbers of innocents. The mere fact that a person has violated the law does not necessarily make that person an undesirable parent. We know, through both intuition and sociology, that removing fathers, and increasingly mothers, from families not only creates economic hardship but produces the next generation of criminals.Footnote 117 In addition, the racial and class bias of U.S. mass incarceration has had a devastating effect on many inner city communities, where a large proportion of the male population is absent and where imprisonment has become a rite of passage rather than a form of chastisement.Footnote 118 To proceed to the cattle, that is, economic assets, policy makers should realize that extended prison terms also deprive society of the offenders’ skills and economic contributions. Placing an offender in prison transforms the person from someone we can tax to someone we must pay taxes to maintain, and thus constitutes an affliction for the very people we are attempting to protect.
Still another set of collateral consequences involves the offenders themselves. Just as the old practice of mutilation produced a non-functional person—and a miserable one as well—current and supposedly more humane punishments often have results beyond those that are intended, or at least declared. Are we truly willing to admit that we are sentencing an offender to being physically or sexually abused by other offenders, or systematically humiliated by prison guards?Footnote 119 Can we admit that while we no longer use corporal punishment for recalcitrant prisoners, our alternative—solitary confinement—is not very different, in its capacity to induce despair, from placing the inmate inside a fish, and counts equally as torture when its effects are considered?Footnote 120 Going one step further, most inmates are young people, at the peak of their sexual desire and in the process of defining their sexual identity: would we be willing to explicitly incorporate sexual deprivation as an element of their punishment? The extended sentences that are currently prescribed by law in the United States, the trial of children as adults, the preclusion of parole, and the decreased emphasis on rehabilitation, means that we are adopting policies that destroy the lives of many offenders who have committed much less serious crimes than those who we would be willing to condemn to death or life imprisonment.Footnote 121
Finally, it is instructive to consider the relationship between biblical protocol for mercy and one of the most promising developments at the policy level of the criminal justice system, the increased interest in restorative justice.Footnote 122 The standard procedure for this approach is to gather all affected parties—perpetrator, victim, family members of each, and others in their community—in a facilitated setting where each person speaks in turn about the causes and consequences of the offense. Its goal is to achieve a resolution to the crime based on the principle of repair and reconciliation for all the participants. As its name suggests, restorative justice is a primary disposition of a criminal case, not an extension of mercy. In establishing interpersonal communication between the offender and victim, it at first seems more closely allied to the concept of forgiveness, as described above.Footnote 123
But because it takes the place of a government decision maker, specifically a sentencing judge, restorative justice can also be regarded, in its totality, as an extension of mercy. Viewed in this light, the procedure operates in accordance with the biblical protocol. Its essential feature is a direct interaction among all those affected by the offense. The interaction, although guided by a facilitator, takes a path determined by the participants, which means that it does not rely on any fixed criteria. But its design encourages the participants to overcome their initial reactions, particularly the victim’s anger and the perpetrator’s reluctance,Footnote 124 and work toward a mutually agreeable solution. The inclusion of family and community members almost inevitably takes account of the collateral consequences of both the crime (an aggravating factor) and the punishment (a mitigating or mercy-related factor). Restorative justice is not a panacea, but it is a promising policy alternative to our currently unsatisfactory approach, and its amenability to the biblical protocol of mercy is one of its advantages.
Conclusion
Mercy is an admirable quality, but it is often regarded as too vague or unstructured to be anything more than a sentiment in a modern criminal justice system. In the United States, its biblical origins tend to count against it in this context, both because the U.S. is a secular state and because sentiment seems unreliable as a means of addressing problems such as crime in a complex, technological society. But if the Bible is read as offering instructive narratives, rather than merely invoked as a populist symbol, one discovers discover that its accounts delineate a systematic protocol for mercy that can be applied in modern decision-making contexts. With respect to sentencing, parole and other settings, this protocol rejects contrition because it serves as a means of domination and an invitation to insincerity. In addition, the protocol cautions against compassion because it merges too readily into prejudicial favoritism. Instead, it provides that decision makers should interact directly with the offender, strive to control their own emotional inclinations toward anger or indignation, and consider the collateral consequences of punishment. Even for those who do not believe that the Bible is the word of God, this seems like good advice.
Acknowledgments and Citation Guide
Many people have aided me in both the theory and pragmatics of criminal law and our criminal justice system. I particularly thank Malcolm Feeley, Joe Ingle, Nancy King, Sarah Mayeux, Graham Reside, and Christopher Slobogin. I also thank Moriah Windus for her valuable research assistance. I have no competing interests to declare. Citations in this article follow The Bluebook, 21st edition.
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