Abstract

This essay examines Martha Nussbaum's prescription fortempering retribution with mercy in the capitalsentencing process. Nussbaum observes that theoperation of retribution in the ancient world resultedin harsh and indiscriminate punishment without regardto the particularities of the offender and his crime. In the interest of mercy, Nussbaum advocates the useof the novel as a model for a more compassionatesentencing process. An examination of Nussbaum's``novel prescription'' reveals that the retribution thatoperates in the modern criminal law, and in theSupreme 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 Nussbaumfavors is by no means congenial to mercifulpunishment. Because the particularistic detail of thenovel form is not confined to the sympatheticportrayal of the defendant, the emotionalism thatNussbaum urges encompasses as well emotional detailsabout the characteristics of the defendant's victim. Such victim impact evidence is consistent with thenovel form, but is unlikely to promote mercifuljudgment. Instead, the details of victim impactevidence can be expected to exacerbate a sentencingauthority's inclination to judge a capital defendantharshly. The novel thus provides a poor model for thecapital sentencing process because it fosters the sortof unchecked emotionalism that undermines the rationaldecision making that the Supreme Court has sought toachieve.