ABSTRACT
It is our social practice to suppress certain behaviors. Toward this end, we enjoin the state to visit particular consequences upon the unruly. Although this seems a natural course, there is in fact a gap between the occurrence of abjured behavior and the visiting of consequences. Given that people are agents, the option of not punishing is always at hand, and this option is exercised remarkably often. For example, deserving offenders are often spared for reasons of social or political policy (e.g., the pardon of President Nixon for covering up the Watergate conspiracy), or because the “crimes” were committed under extraordinary circumstances (e.g., as in
The Queen v. Dud-
ley and Stevens,
where crew members, shipwrecked for an extended period, were pardoned for killing and eating one of their number). Similarly, we afford state officials broad discretionary powers to mitigate or forego punishment whenever efficiency (e.g., a quick conviction in lieu of a trial), utility (e.g., turning state’s evidence), or mercy (e.g., the age or infirmity of the offender, or the suffering of third parties) militates against the infliction of the standard sanction.
