Scottish Justice Minister Kenny MacAskill unleashed a firestorm of criticism when he released Abdel Baset al-Megrahi on compassionate grounds last week. Al-Megrahi, who was serving a life sentence for the death of 270 people on Pan Am Flight 103 that blew up over Scotland in 1988, was diagnosed with terminal cancer and given only a few months to live.
Mr al-Megrahi did not show his victims any comfort or compassion. They were not allowed to return to the bosom of their families to see out their lives, let alone their dying days. No compassion was shown by him to them,” he said.
“But that alone is not a reason for us to deny compassion to him and his family in his final days.”
Mr MacAskill continued: “Our justice system demands that judgement be imposed, but compassion be available.
This case raises interesting philosophical questions about mercy and when it is appropriate.
Since al-Magrahi’s release, many have accused the Scottish government of releasing him for diplomatic or financial reasons. To the extent these allegations are true, that would make the release a cynical political move rather than an act of compassion or mercy. And the sight of a mass-murderer getting a hero’s welcome in Libya was deeply disturbing for anyone but especially for the families who grieve the loss of their loved ones.
But I want to ignore these complications and ask whether the release was justified on the basis of mercy.
Many of the objections to al-Magrahi’s release miss the mark. For instance, some people have said that it should have been up to the families of the victims, not the Scottish government, to decide when to grant mercy. But that response confuses forgiveness with mercy.
Forgiveness is personal and involves overcoming feelings of resentment about a wrong. It is something that only victims (or those closely related to victims) can grant. Mercy, by contrast, involves someone with power over a vulnerable person treating them less harshly than they deserve. It often involves institutional power since institutions often have power over vulnerable persons. It is not about overcoming personal feelings. One can grant forgiveness without offering mercy and one can extend mercy without granting forgiveness.
Because the Scottish government had power over al-Megrahi and the authority to punish him, they uniquely had the right to grant mercy, although not forgiveness. The question is whether they were correct to do so.
Others argue that the release was justified because of the lack of substantial evidence against al-Megrahi. But that is a matter of whether justice was served by the conviction and sentencing. It calls for further investigation and appeals to the legal system, not mercy.
Similarly, those who argue that the release was a travesty of justice miss the point. Of course, it was. Mercy inherently involves suspending a just outcome in favor of some moral consideration beyond the realm of justice.
Other commentators suggest the release was a form of appeasement which demonstrates the United Kingdom’s inability to stand up to people who have attacked us. But I think that is implausible. As Nietzche points out, mercy is a virtue of pride, not of weakness. It indicates an (often illusory) condition of invulnerability to injury through which the powerful demonstrate their nobility.
No. The issue is whether there were grounds for mercy or not. Although mercy involves suspending justice, it can’t be utterly capricious. There are conditions under which it is appropriate and conditions under which it is not.
The reason for mercy asserted by the Justice Minister was the fact that al-Megrahi will die soon, and compassion requires that we allow him to spend his last days with his family. But all prisoners with life sentences will eventually die in prison. Should we extend mercy to all of them? If the answer is no, then there must be something peculiar about al-Megrahi’s case that qualifies him for mercy.
Mercy involves a judgment based on understanding the individuating features of a case that warrants a person being treated with leniency. It avoids rule-guided judgment in favor of discretion and moral perception. The mercy-giver focuses on the plight of a vulnerable person, his difficult situation, his vulnerability because he is in the power of someone else and therefore subject to an extraordinary burden or threat.
But the mere fact that al-Megrahi is dying doesn’t seem sufficient to warrant mercy. He is vulnerable and subject to the burden of dying in prison, but that doesn’t distinguish his case from thousands of others similarly situated. There is nothing peculiar about his situation. Furthermore, he doesn’t seem to have suffered from a deprived upbringing, faced obstacles to avoiding the harm he caused, and neither has he apologized for his act. Nothing about his circumstances appear to be mitigating factors that warrant mercy.
In general, I think in order for mercy to be warranted, there must be some loose, imprecise balance struck between the burden suffered by the recipient of mercy and the degree of malicious harm displayed in the original crime. In other words, I think justice considerations are relevant to mercy but not over-riding. Mercy involves departing from some existing framework of justice but not necessarily a departure from all considerations of justice. In al-Megrahi’s case, there is no such balance. He maliciously killed 270 people. Had he murdered someone in a fit of rage in a dispute over gambling debts, for example, the case for mercy might have been stronger.
Thus, I think there was a mistake in reasoning by the Scottish Justice Minister. Compassion could have been expressed more appropriately through palliative care and family visits in prison.
However, a good utilitarian argument for mercy in this case can be made.
The message of respect for life and the recognition that prisoners are human and vulnerable is an important one, to which we pay too little attention in the U.S. Mercy requires self-control by people who possess power over others. And that self-control is a good thing to encourage. Retribution is important in encouraging social cooperation but it can easily get out of control and lead to a kind of perverse pleasure in seeking revenge. Mercy has a civilizing effect that breaks the cycle of revenge and helps avoid abuses of power.
The U.S. justice system has a systematic bias toward excessive punishment, given the human propensity for revenge, the political advantages to being tough on crime, and the presence of social conditions that foster crime. Thus, our prisons are overflowing.
One of the remarkable features of this episode is the differing responses in the U.S. compared to the U.K. According to the Globe and Mail,
The move to release him was accepted with a measure of equanimity by families of victims in Britain, but met with bitter fury by their counterparts in the United States.
I wish we had a greater capacity for mercy of the sort displayed by Scotland, despite the faulty reasoning. We would be better for it.
Dwight Furrow is Professor of Philosophy at San Diego Mesa College and the author of Reviving the Left: The Need to Restore Liberal Values in America
