Blessed are the merciful (Matthew 5:7). Who could possibly disagree? As an abstract virtue mercy is often lauded. It displays humane modesty, integrity and compassion. But it is a virtue whose practice generates considerable controversy and consternation. To whom should we act mercifully? On what grounds? What of justice? In discussions of criminal justice the invocation of mercy is often perceived to run counter to the demands of justice. Within Christianity the problematic is long contested. The epistle of James paradoxically enjoins mercy and threatens with retribution those who do not act mercifully. ‘For judgment will be without mercy to anyone who has shown no mercy; mercy triumphs over judgment’ (James 2:13). The dominant solution in Christian thinking, especially in the West, has been to understand justice retributively, and thus to construe mercy as an intrusion which compromises deserved punishment. For much of the tradition such an intrusion is worthy but episodic or selective. This chapter briefly identifies the theological precedents and secular transformations that eventually led to the eclipse of mercy in public judgement. It then explores the communicative justification of punishment and demonstrates that, in retaining the traditional retributivist antinomy of justice and mercy it undermines the effectiveness of punishment as an invitation to reform. By contrast, this chapter will argue that mercy is to be regarded as the operative condition of justice. Divine mercy founds the pursuit of justice not on a requirement for reform, but on a gift of penitential time in which restoration and reform occur as phenomena of gratitude. Finally, it explores how this has the potential to broaden discussions of desistence to a fuller account of the criminogenic elements of desire – as a central element of sustained desistence from crime.

Retribution and the eclipse of mercy

For a great deal of Christian thinking the paradigm of Jesus shapes both the concept and the practice of the virtue of mercy. The conundrum of how to relate mercy and justice took on a particularly pronounced tension once Christianity, after Constantine, found itself needing to articulate both the upholding of order and the exemplary mercy of Christ.