Abstract

Excerpted From: Ekow N. Yankah, Should Racially Vulnerable Victims Show Mercy?, 102 Texas Law Review 1515 (June, 2024) (108 Footnotes) (Full Document)

On June 17, 2015, twenty-one-year-old Dylann Roof entered the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, sat, and prayed with nine congregants for at least an hour before pulling out a handgun and killing Cynthia Hurd, Susan Jackson, Ethel Lance, DePayne Middleton-Doctor, State Senator Rev. Clementa Pinckney, Tywanza Sanders, Rev. Daniel Simmons, Sharonda Singleton, and Myra Thompson. He left three survivors, explicitly so they could “tell the story” of his killings. Roof did so for his own demented reasons; his racist rage was laid out publicly in an online manifesto, and he hoped his murders would begin a race war. Roof was ultimately convicted of a range of murder and hate crimes.

The shocking nature of the racist killings, the background of American gun violence, and the venue of a historically Black church fated the killings to command national attention. But the nation's attention became fixed on the Roof trial for another reason: in the face of this unspeakable horror, family members of many of the victims, in a spectacularly public fashion, stood before the court and spoke, in intimate and emotional terms, of the scarring impact of Roof's killings. Then, extraordinarily, many of the same family members offered their forgiveness to Roof for his crimes.

Though in some ways uniquely moving, the show of heartbroken families offering Roof a form of absolution also felt familiar. It fit into a familiar pattern of racist harm--sometimes extraordinary and fatal, sometimes more subtle--aimed at minorities, particularly African Americans, where victims subsequently offer very public forms of forgiveness. Perhaps this is not surprising; America's ability to ignore the insidious effects of racism is, perhaps naturally, matched by the depth of its racial anxiety. Thus, highly visible blows that enflame our racial scars are met with a longing for some rapidly soothing balm. And the natural players to reassure the collective angst are too often the African-American, or other minority, victims themselves.

This Essay should not be misunderstood as insulting the family members who offered Roof this extraordinary measure of grace. My concern is not that they are being conned to play act a role in our national racial drama. They expressed this forgiveness as guided by deep religious and moral commitments. Further, I am alive to the often-expressed sentiment that forgiveness may be for the sake of the one who grants it as much as the one who receives it. Nor is the story one-dimensional; some surviving relatives were clear they had no interest in abating their anger and condemnation of Roof. But the drama that played out in the families offering forgiveness, though in some ways intimate, cannot be relegated to the purely private sphere. The family victims of Roof were not merely offering personal forgiveness; they called upon the legal system to give their absolution legal weight. Thus, their calls for forgiveness doubled as calls for legal mercy, implicitly or explicitly offered as carrying special weight to insist our institutions grant such mercy.

The place of mercy from deserved legal punishment has its own rich philosophical historical tradition. The question insists one take a position on the appropriate relationship between mercy and punishment, the appropriate influence of victims in addressing public wrongs, and the place of personal virtues in legal institutions embedded in a secular, liberal state. Among these myriad questions, this Essay takes up a more narrow range of concerns: the question may be understood as the tension between forgiveness or legal mercy and the duty of victims, particularly racially or politically disenfranchised victims, to insist on punishment for wrongdoing that demeans them as members of a group. The question, in brief, is whether vulnerable victims have special political, or perhaps even moral, duties to forgo any inclination to legal mercy.

Arguing against mercy feels, well, unforgiving. But the request for legal mercy from racially and politically vulnerable groups comes with two concerns. First, I worry, without having any clear way to prove it, that minority victims are more often asked to engage in public displays of forgiveness. In any case, forgiveness by minority victims is quickly amplified and consumed voraciously. We should worry that Black forgiveness for racist violence is so quickly and widely trumpeted. The forgiveness of Black victims is so desperately celebrated precisely because it offers the illusion of collective reprieve from racist injuries. Secondly, I worry that, while a particular disenfranchised victim may be in a position to withstand injury and offer forgiveness, insisting on mercy may be harming future potential minority victims by failing to demand we fully address the harmful behavior.

Concrete examples may help clarify our intuitions. The racist killings of Black churchgoers by Dylann Roof provide as painful an example as could be easily conjured. Equally, we can imagine a female victim of sexual assault where, perhaps due to her (otherwise) fortunate resources and social support, she feels the task of healing is a personal one and sees no personal rewards from her attacker being prosecuted or punished. She may, like the victims' families in Charleston, insist on mercy due to deeply held religious or ethical commitments. Though her motivation is based on mercy, further instrumental reasons also play a role in why she does not want to pursue the prosecution. The personal psychological costs of prosecution may not appear worth it. One reason to think of this question as exploring the civic duties of victims is to highlight the expectation to pursue (the full extent of) punishment, even when victims have purely practical reasons to demur, against other ethical commitments to legal mercy.

Lastly, I have the perhaps naïve belief that there is value in making progress, even if short of perfect clarity, on the philosophical justifications underlying our punishment practices before trying to wrestle them into systematic coherence. The actual underlying effects of victim impact statements, particularly calls for mercy, are legally and empirically unclear.

Various jurisdictions invite or allow such statements at the formal sentencing stage of punishment. Further, different crimes are governed by different victim statement regimes, with capital crimes inviting the most wide-ranging inquiry about the wrongdoer's character and the appropriateness of mercy. This range of regimes for formal victim impact statements does not even account for the more or less formal processes in which prosecutors may take a victim's preferences into account before or during prosecution of a case. This unruly landscape hints that we remain collectively at a loss as to how to incorporate victims' calls for mercy within our institutions. Perhaps exploring the political duties of even one subset of victims might shed some light on a path ahead.

[. . .]

The appropriate role of mercy in the criminal law has a rich history. The debate has usually centered around whether an avowedly liberal legal system could incorporate mercy. Mercy, after all, is defined as withholding punishment that is otherwise deserved. Further, because mercy is not dispensed to all, it has long been indicted as arbitrarily picking out some to gain a windfall in the form of less punishment. In short, mercy has been seen as illiberal, unjust, and arbitrary.

But even cursory inspection reveals more problems still. It would be naïve to believe that grants of mercy were randomly distributed. Clear racial patterns have long been noticed in who gets punished and who gets grants of mercy. Just because mercy is unprincipled may not mean that it is arbitrary.

My goal is to highlight yet one other concern, largely unexplored in our thinking of mercy: forgiveness is often used as a basis to press for mercy, as when victims and their families ask the legal system to take notice of their absolution. I admit to unease in railing against those who, in the face of great pain, call for mercy. I, like anyone, am struck by their magnanimity and their often religiously inflected grace. But I believe it would be a mistake to simply accept calls for mercy from the systematically vulnerable without a second thought. Just as we have a collective interest in how grants of clemency track racial lines and other cites of disenfranchisement, we have a collective interest in inspecting who is pressed to offer forgiveness and whether disproportionately offered forgiveness imposes its own social cost.

Thomas M. Cooley Professor of Law and Professor of Philosophy, University of Michigan.