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Carol Steiker, The Mercy Seat: discretion, justice, and mercy in the American criminal justice system, in The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz 212 (Michael Klarman, David Skeel & Carol Steiker eds., 2012).

Abstract: It is a signal honor to succeed Bill Stuntz as the Henry J. Friendly Professor of Law at Harvard. To hold a Chair named for such a respected judge and held by such a respected scholar and beloved colleague and friend is not only an honor but also an inspiration – to hone my own craft, to think harder, and to reach farther, both professionally and personally.Stuntz and Friendly were both brilliant and principled in their respective legal domains, but I’m sure I was not the only one to joke with Bill that he was more “friendly” than his Chair's namesake, who was known to be rather intimidating. My topics for this chapter – mercy and justice, in Bill Stuntz's work and my own – may lead some to a similarly amused bemusement, in that my approach to this topic is more explicitly religious in inspiration than Bill's own, despite the fact that he was a devout Christian and I am an (at most) agnostic Jew. Perhaps it was Bill's unconscious influence, or perhaps it was my very agnosticism that liberated me to explore theology as a source of public values, but it was I (and not Bill) who gave a keynote address at a Chicago Divinity School conference, on “Doing Justice to Mercy,” and who later co-taught a course with a Harvard Divinity School professor on “Justice and Mercy in the Jewish and Christian Traditions and American Criminal Justice.” In what follows, I hope to show that the theological origin of the concept of mercy offers both a contrast to and a path toward a human-scaled practice of mercy – a practice informed by and sympathetic to Bill's own criminal justice scholarship and Christian commitments.