Steiker, taking Aibel chair, explores the quality of mercy

 							Professor Carol Steiker 					Professor Carol Steiker ’86 formally took the Howard J. and Katherine W. Aibel Professorship of Law in a Langdell Hall ceremony yesterday, and celebrated the occasion with a lecture exploring the role of mercy in the criminal justice system.

The Aibel chair was established with a gift from Howard Aibel ’51, a lawyer who spent nearly 30 years as vice president and chief legal officer of International Telephone and Telegraph Corporation. In 1994, Aibel left ITT to develop the negotiation and mediation practice at LeBoeuf, Lamb, Greene & MacRae.

Aibel and members of his family were on hand for yesterday’s ceremony. In her introductory remarks, Dean Elena Kagan ’86 highlighted Aibel’s career, and thanked him for his longtime support of the school, particularly his service on the Dean’s Advisory Board. She also noted the many philanthropic interests that Aibel shared with his late wife, Kathy.

“Knowing what we do about the public-spirited couple responsible for the professorship we’re celebrating today, I can’t think of anyone more deserving than its first recipient and my dear friend Carol Steiker,” Kagan said. “Many of the great ideas we’ve had about how to strengthen the school’s commitment to public service are attributable to her.” Kagan was also effusive in praising Steiker’s exceptional record of written scholarship and her deeply committed advocacy for appellants facing the death penalty.

In her lecture, Steiker—who practiced criminal defense law as a public defender in the District of Columbia before joining the faculty and has continued to represent appellants in capital punishment cases—made the case for broadening the role of mercy in criminal punishment.

Addressing mercy is “a matter of urgent importance,” Steiker said, in view of the unprecedented incarceration rates and record numbers of capital cases in the U.S. today. It is even more urgent, she suggested, because a disproportionately large segment of the prison population is black.

“At every level, from on-the-street policing, to bail policies, to the provision of defense resources, to sentences and the use of capital punishment, it appears that we have not one criminal justice system, but two — one for the white and relatively privileged and another for indigent minorities. Viewed through the lens of this issue, the exercise of mercy has a different face and a far more problematic one, for it is likely that the institutional opportunities for the exercise of mercy in the criminal justice system are also sources of a substantial part of the system’s disparate impact along the lines of race, ethnicity, and class.”

A central question for the legal system, Steiker said, “is whether there is a coherent and normatively attractive conception of mercy that is also consistent with the ideal of the rule of the law — the fundamental commitment to treating like cases alike. A second crucial question, this one more institutional than normative, follows from the first: what would such a conception mean for the reform of our current institutions of criminal justice and for the self-conception of the institutional actors within them?”

Steiker explored those questions by reviewing theoretical, moral, religious, philosophical and even economic arguments both for and against the value of mercy in criminal justice.

Saying she was “planting her flag in the pro-mercy camp,” Steiker concluded: “Given the predictability of an ever-upward tending ratchet of punishment … within our current institutional arrangements, we need some counter-ratchet, some way of checking this tendency and working against it. I contend that the ideal of mercy … is that necessary counter-balance.”

But she added: “The cultivation of the virtue of mercy is not without cost. Discretion, which is necessary for the virtue of mercy to be cultivated, has dark sides. … Thus, while I join the pro-mercy camp and bring new arguments as reinforcements of that position, I do so with some fear and trepidation. These fears need to be fully confronted and explored, and potential mitigation of them considered, before the case for the cultivation of mercy within our current institutions can prevail.”

A noted expert on criminal law and capital punishment, Steiker joined the faculty in 1992. She gained tenure in 1998, and that same year was appointed associate dean. In 2003 Dean Kagan appointed her Special Adviser for Public Service.