The story of justice:Retribution, mercy, and the role of emotions in the capital sentencing process [Book Review]
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Law and Philosophy 19 (3):339-367 (2000)
This essay examines Martha Nussbaum's prescription for tempering retribution with mercy in the capital sentencing process. Nussbaum observes that the operation of retribution in the ancient world resulted in harsh and indiscriminate punishment without regard to the particularities of the offender and his crime. In the interest of mercy, Nussbaum advocates the use of the novel as a model for a more compassionate sentencing process. An examination of Nussbaum's ``novel prescription'' reveals that the retribution that operates in the modern criminal law, and in the Supreme Court's capital sentencing jurisprudence, already accommodates the values of justice –individuation, particularization, and proportionality – that are characteristic of the mercy tradition. Moreover, the rich narrative approach that Nussbaum favors is by no means congenial to merciful punishment. Because the particularistic detail of the novel form is not confined to the sympathetic portrayal of the defendant, the emotionalism that Nussbaum urges encompasses as well emotional details about the characteristics of the defendant's victim. Such victim impact evidence is consistent with the novel form, but is unlikely to promote merciful judgment. Instead, the details of victim impact evidence can be expected to exacerbate a sentencing authority's inclination to judge a capital defendant harshly. The novel thus provides a poor model for the capital sentencing process because it fosters the sort of unchecked emotionalism that undermines the rational decision making that the Supreme Court has sought to achieve.
|Keywords||Nussbaum retribution mercy emotions capital sentencing narrative|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
Mihaela Mihai (2011). Emotions and the Criminal Law. Philosophy Compass 6 (9):599-610.
Similar books and articles
Steve Aspenson (2013). The Rescue Defence of Capital Punishment. Ratio 26 (1):91-105.
Wesley Cragg (1992). The Practice of Punishment: Towards a Theory of Restorative Justice. Routledge.
Katrina Sifferd (2012). Changing the Criminal Character: Nanotechnology and Criminal Punishment. In A. Santosuosso (ed.), Proceedings of the 2011 Law and Science Young Scholars Symposium. Pavia University Press
Meghan Shapiro, An Overdose of Dangerousness: How 'Future Dangerousness' Captures the Least Culpable Capital Defendants and Undermines the Rationale for the Executions It Supports.
James B. Johnston, The Bridge Connecting Pontius Pilate's Sentencing of Jesus to the New Jersey Death Penalty Study Commission's Concerns Over Executing the Innocent: When Human Beings with Inherently Human Flaws Determine Guilt or Innocence and Life or Death.
Tyrone Kirchengast, Recent Developments in Victim Agency in the New South Wales Justice System: The Case of Victim Impact Statements.
William A. Edmundson (1990). The "Race-of-the-Victim" Effect in Capital Sentencing: McClesky V. Kemp and Underadjustment Bias. Jurimetrics 32:125-41.
Tyrone Kirchengast (2010). Proportionality in Sentencing and the Restorative Justice Paradigm: 'Just Deserts' for Victims and Defendants Alike? [REVIEW] Criminal Law and Philosophy 4 (2):197-213.
Added to index2009-01-28
Total downloads25 ( #108,415 of 1,699,581 )
Recent downloads (6 months)4 ( #161,079 of 1,699,581 )
How can I increase my downloads?