In The Merchant of Venice, the Bard of Avon, William Shakespeare, assigns Portia the task of imploring Shylock for mercy for Antonio’s life subject to his losing a “pound of flesh” for an outstanding financial debt.
“The quality of mercy is not strained,” pleads Portia, disguised as a lawyer, and urges the money lender to demonstrate the godly quality and spare Antonio his life. Portia is ultimately successful when she convinces Shylock that taking the pound of flesh also causes serious bloodletting, which is not covered in the debt bargain.
Mercy or compassion is, for the most part, an absolute authority available in rendering punishment. In the United States, it is the root of the pardon power of presidents and governors, along with clemency. The nation’s jurisprudence by definition of criminal and civil laws, fines, penalties, and mandatory sentences, tends not to envision the existence of mercy. On the other hand, substantial discretion is a hallmark of those who serve as judges, enabling them to exercise broad powers in the administration of justice.
Within this vector of governance, the equity of justice is often strained, causing observers to question the fairness of the system of justice. In recent months, several court cases have been publicized invoking and provoking thoughts about the rule of law and equitable treatment in judicial proceedings.
Within this vector of governance, the equity of justice is often strained, causing observers to question the fairness of the system of justice. In recent months, several court cases have been publicized invoking and provoking thoughts about the rule of law and equitable treatment in judicial proceedings.
Over a period of months early this year, four white males were found to have cast illegal ballots in the 2020 election across several states – Nevada, Ohio, and Pennsylvania. One received a light jail sentence while the others were placed on probation. In each case, an actual forged ballot was submitted, discovered, and discounted.
In 2018, Crystal Mason, a Black woman in Texas, was convicted of voter fraud for illegally voting in the 2016 election and sentenced to 5 years in prison. Unlike the four white men, Mason claims she did not know her prior felony conviction disenfranchised her from voting.
In November 2021, Pamela Moses, a Black woman in Tennessee, was sentenced to 6 years for voter fraud after attempting to register to vote. Moses had received documentary clearance to vote from a probation officer who (incorrectly it turns out) stated her probation from a prior felony conviction had ended.
In The Merchant of Venice, an underlying theme involved anti-Semitism among the Christians of the city state and their views of Jews. While Shakespeare alluded to no gender discrimination in the play, Portia’s lawyer disguise suggests she was taking advantage of an implicit bias. As it turned out, her legal analysis of the “flesh and blood” loophole proved successful. Alas, Crystal Mason and Pamela Moses could not avail themselves of disguises as white males.
A former delegate to the Virginia General Assembly originally pled guilty to embezzlement of $36,000 from a not-for-profit he managed. The white male withdrew the guilty plea and sought a sentencing agreement that involved no jail time, no felony conviction, merely probation. On February 16, the presiding justice rejected the proposed agreement, inferring that its terms were too generous and stayed the proceeding for another hearing.
In August 2021, a white male government agency official pled guilty to 4 counts of embezzlement of $80,000 following an indictment on 14 charges. On February 14, Valentine’s Day, a judge sentenced him to 8 years in prison, all suspended. The defendant agreed to repay the embezzled funds, a portion of which was to be, ironically, proceeds from accrued government vacation leave time.
As a statement of public policy, Virginia criminal law defines grand larceny (felony) as a theft of $1,000 or more. Repayment or restitution may be considered in sentencing. Shoplifting a $1,100 piece of jewelry at a mall is subject to a sentence of 1 to 20 years. The two Virginia embezzlement cases involve substantial multiples of that threshold amount. The injury or damages occurred at the time of the thefts. Injury or damages to the electorate by the two women were, in one case, non-existent, and, in the other, not measurable. Such disparity invites quantifiable evaluations of the equitable distribution of criminal punishment and is compounded by factors about gender, race, and status.
When the quality of justice, its even-handed application, is in question, the public is left only to wonder. How equitable were the sentences of the two Black women in comparison with the four white males? The issue is not equality of the sentences but equity, their fairness. The four males actually intended to defraud the voting rules, compared with that of the two women who offered reasonable excuses for their culpability.
It may be that the common wisdom of the citizenry favors the consideration of mercy in the administration of justice. That’s difficult to rule out. However, when the quality of justice, its even-handed application, is in question, the public is left only to wonder. How equitable were the sentences of the two Black women in comparison with the four white males? The issue is not equality of the sentences but equity, their fairness. The four males actually intended to defraud the voting rules, compared with that of the two women who offered reasonable excuses for their culpability.
Neither lawyers nor judges need to don disguises to reach wildly disparate conclusions in the administration of justice. Mercy for embezzlement in Virginia may be the rule. In all of these examples, it is not mercy that has suffered or been subjected to strain but elemental fairness in the quality of justice and the conscience of the public.
Categories: CIVIL RIGHTS, elections, Issues, National, prisons, prosecutors, RULE OF LAW, State
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