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THE STORY OF JUSTICE: RETRIBUTION, MERCY, AND THE ROLE OF EMOTIONS IN THE CAPITAL SENTENCING PROCESS (Accepted 17 April 2000) ABSTRACT. 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. KEY WORDS: Nussbaum, retribution, mercy, emotions, capital sentencing, narrative

Lysimachus . . . [was not] a wit more kind when he himself became king . . . for Telesphorus the Rhodian, his own friend, he completely mutilated, and when he had cut off his ears and nose, he shut him up in a cage as if he were some strange and unknown animal and for a long time lived in terror of him, since the hideousness of his hacked and mutilated face had destroyed every appearance of a human being; to this were added starvation and squalor and the filth of a body left to wallow in its own dung; further more, his hands and knees becoming all calloused – for by the narrowness of his quarters he was forced to use these instead Law and Philosophy 19: 339–367, 2000. © 2000 Kluwer Academic Publishers. Printed in the Netherlands.

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of feet – his sides, too, a mass of sores from rubbing, to those who beheld him his appearance was no less disgusting than terrible, and having been turned by punishment into a monster he had forfeited even pity. Yet, while he who suffered these things was utterly unlike a human being, he who inflicted them was still less like one. Seneca, De Ira III.17 A person who notes and reacts to every injustice, and who becomes preoccupied with assigning just punishments, becomes, in the end, oddly similar to the raging ungentle people against whom he reacts. Retributive anger hardens the spirit, turning it against the humanity it sees. And in turning against humanity, in evincing the rage and hardness of the angry, one then becomes perilously close to the callous wrongdoers who arouse rage in the first place. Martha Nussbaum

I. INTRODUCTION

In her essay, “Equity and Mercy,”1 Martha Nussbaum attempts to bring ancient concepts to bear on a contemporary issue of justice – capital sentencing procedures in the United States. In the tradition of Seneca, who catalogued the spectacular atrocities that passed for justice in the ancient world, Nussbaum prescribes mercy through narrative: “I argue that the experience of the concerned reader is an artificial construction of ideal moral and judicial spectatorship, with respect both to particularity of attention and to the sort and range of emotions that will and will not be felt.”2 Like Seneca, Nussbaum is guided by the recognition that human beings are universally fallible and thus all people – criminal and judge – are more alike than different: “If we want to be fair judges of all things, let us persuade ourselves of this first: that none of us is without fault. For it is from this point above all that retributive anger arises: ‘I did nothing wrong,’ and ‘I did nothing.’ No, rather, you don’t admit to anything.”3 The retributive attitude must be rejected, therefore, because it encourages the “we/them mentality”4 that permits only 1

Nussbaum, Martha C., “Equity and Mercy,” Philosophy and Public Affairs 22 (1993), pp. 83–125. 2 Ibid., p. 110. 3 Seneca, De Clementia II.28 in John W. Basore (trans.), 1 Moral Essays (Cambridge: Harvard University Press, 1994). 4 Nussbaum, “Equity,” p. 103.

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the broadest distinctions among people, between the wicked and the righteous. Nussbaum’s narrative approach is designed to promote the values that work against such facile dichotomies and that are so plainly lacking from Roman justice. She investigates the origin and development of such concepts as mercy, justice, and retribution as a means to assess the quality of judicial decision-making with respect to capital sentencing procedures in the United States. The Supreme Court has failed, from Nussbaum’s perspective, to give due consideration to the particularities of offenders and the circumstances of their crimes; it has failed to embrace fully the narrative art as a mechanism for dispensing humane criminal punishment; to this extent, it has failed to do justice. On behalf of the narrative art as a guide to just sentencing procedures in the context of capital punishment, Nussbaum endeavors to demonstrate the infirmities of retributivism, which include its inflexible insistence on the suffering of wrongdoers irrespective of their circumstances. She seeks also to highlight the Supreme Court’s inadequate appreciation for, and often outright denial of, the importance of sympathetic understanding for just capital sentencing. Finally, she attempts to illustrate the effectiveness of the narrative art, as it operates within its traditional sphere – the literary imagination – for inspiring merciful judgment. Notwithstanding the rich historical detail and colorful literary references that mark Nussbaum’s argument for mercy, she fails to provide a convincing justification for the introduction of the narrative art into the capital sentencing process – or so it shall be the purpose of this essay to demonstrate. Part II is an examination of Nussbaum’s account of retributivism and concludes with the observation that as a desert-based theory, retributivism, contra Nussbaum, cannot ignore the particularities of offenders and their crimes. Part III canvasses the Supreme Court’s capital sentencing decisions in an effort to illuminate the context for assessing the Court’s performance in capital punishment decision-making. This context reveals that the Court shares Nussbaum’s concern for the values of particularization essential to humane punishment. Part IV considers some implications of the narrative art, as embodied in the novel, and determines that the greater detail imported by the novelistic form cannot be

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expected to produce merciful judgments. Specifically, it does not provide an adequate basis for the principled exclusion of the details of victim impact, details which can be expected to frustrate the effort to achieve merciful punishment and thus, to thwart justice. In Part V, some implications for the role of mercy in the capital sentencing process emerge from the considerable body of literature devoted to the complicated task of institutionalizing mercy in the modern law. Nussbaum’s concerns for the importance of mercy in capital sentencing appear to be better addressed by a more schematic account of mercy’s role in the administration of justice. A. Nussbaum and the Values of Justice The effort to render Nussbaum’s vision of justice is complicated by her ambiguous account of its relationship to mercy. Justice, according to Nussbaum, requires consideration of the particularities of an offender and his crime as well as the appropriate degree of punishment – in short, the values of individuation, particularization, and proportionality.5 At places, Nussbaum appears to agree with Aristotle that such particular considerations are characteristic of a type of justice, a type that modern civilized societies should appropriately embrace.6 Mercy, which Nussbaum advocates, “seems to involve a gentleness going beyond due proportion, even to the deliberate offender.”7 Yet despite its tendency to inspire leniency,8 Nussbaum notes, “[m]ercy is not acquittal”;9 “good judging . . . does not ignore the evidence, it does not fail to say that injustice is 5 Although the precise terms are neither Nussbaum’s nor Seneca’s, they serve as a convenient shorthand for the values they represent and do not appear to distort those values as they have been invoked within the mercy tradition. Nussbaum’s call for consideration of an offender’s deeds in light of his particular life circumstances, “Equity,” p. 103, has been rendered as individuation. Particularization was derived from her account of Oedipus and captures her concern for the importance of understanding the unique circumstances of his crimes. Ibid., p. 90. Proportionality arises out of Nussbaum’s rendition of Seneca’s Clementia which requires, at a minimum, that the imposition of punishment be informed by the particulars of offender and offense; it may even require refraining from imposing the maximum penalty that justice, unleavened by mercy, indicates. Ibid., p. 101. 6 Ibid., p. 93. 7 Ibid., p. 97. 8 Ibid., p. 86. 9 Ibid., p. 124.

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injustice, evil evil.”10 Moreover, even as she acknowledges that a legal system, committed to unbiased, uniformly applicable rules, cannot operate on the assumption that a moral ideal – here, the equity tradition’s conception of mercy – will be realized in practice, Nussbaum advocates a greater role for discretionary considerations that are inherently and inevitably subjective. Thus, while she candidly acknowledges her preference for leniency in sentencing decisions, she seeks to portray her reform as an attempt to achieve a measure of proportionality. But punishment of a criminal, in light of the particularities of circumstance, is a demand of justice; if mercy leads to lesser punishment, it would seem to undermine the value of proportionality. It remains unclear throughout Nussbaum’s argument whether justice entails mercy such that, by virtue of its omission, a sentence is not truly just; or, whether justice alone is inadequate to accommodate the sort of particularized considerations that mercy uniquely supplies. This confusion leaves Nussbaum vulnerable to the challenge of those, such as Jeffrie Murphy, who are suspicious of mercy’s role in criminal sentencing: For to avoid inflicting upon persons more suffering than they deserve, or to avoid punishing the less responsible as much as the fully responsible, is a simple – indeed obvious – demand of justice. Basic demands of justice are that like cases be treated alike, that morally relevant differences between persons be noticed, and that our treatment of those persons be affected by those differences. This demand for individuation – a tailoring of our retributive response to the individual natures of the persons with whom we are dealing – is part of what we mean by taking persons seriously as persons and is thus a basic demand of justice. . . . Judges or lawmakers who are unmindful of the importance of individuational response are not lacking in mercy; they lack a sense of justice.11 10

Ibid., p. 125. Murphy, Jeffrie and Jean Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988), pp. 171–172. While Murphy suggests that mercy may just be one aspect of justice, others have argued that mercy complements justice. Like Nussbaum, Claudia Card maintains that mercy tempers justice through particularization. Card, Claudia, “On Mercy,” The Philosophical Review 81 (1972), pp. 131–207. As Murphy notes, however, Card “seems to offer a view of mercy that makes it a part of justice (on a sophisticated theory of justice) and not an autonomous moral virtue.” Murphy and Hampton, Forgiveness and Mercy, p. 170, n. 4. H.R.T. Roberts levels a similar critique at Alwynne Smart’s influential account of mercy: “Surely any case in which mercy is appropriate is 11

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Notwithstanding the confusion in Nussbaum’s argument concerning the precise part that mercy is to play in the narrative of justice, she is unequivocal in her commitment to the values of particularized consideration – individuation, particularization, and proportionality (duly qualified) – essential to just sentencing.12 Thus, the balance of her essay concerns the utility of employing the narrative art as a means to take account of such values; addressing her claim requires some attention to these values. Individuation concerns the personal characteristics of an offender; it requires that he be judged in light of his unique circumstances. An abusive family, physical or mental limitations, and other disadvantages, such as extreme poverty or ignorance, exemplify the need for considering each offender as an individual. Whatever the similarities among a class of offenders, individuation ensures that a criminal will be treated as a unique personality whose life circumstances distinguish him from every other offender. Particularization concerns the circumstances of the offense; it insists on consideration of the complex story unique to a certain criminal act. Determining the defendant’s degree of participation in a crime, distinguishing his intentions from the consequences of the crime, and considering any other extenuating circumstances, such as motivation, provocation, or premeditation, serve to characterize the nature of a particular criminal deed. No two crimes are truly alike and punishment should be tailored to reflect these variations. Proportionality is addressed to the issue of degree; it requires that punishment fit the crime. Gradations in the severity of punishment are an appropriate response to the varying levels of criminality. Nussbaum is convinced that an awareness of these particularities – of an individual’s circumstances

one in which the factor making it appropriate requires to be taken into account before deciding on what sentence is just. A just decision means one that is arrived at after all circumstances and obligations are given their due weight.” Roberts, H.R.T., “Mercy,” Philosophy 46 (1971), pp. 352–353. 12 Perhaps Nussbaum’s confusion stems from her reliance on Seneca, who offers a similarly ambiguous conception of mercy: “Everybody . . . understands . . . that mercy consists in stopping short of what might have been deservedly imposed.” De Clementia II.2 (emphasis added). “Mercy is superior [to a pardon] primarily in this, that it declares that those who are let off did not deserve any different treatment.” Ibid. (emphasis added).

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and the complex factors that shaped his life – cannot but provoke sympathetic understanding and, ultimately, mercy. In the interest of mercy, Nussbaum advocates the introduction of the narrative art into the capital sentencing process. By adopting the literary disposition when meting out punishment, judges13 will take account of the values essential to justice and will thus be inclined toward leniency. In particular, she encourages the Court to embrace a type of judgment in the determination of sentences that comports with literary judgement: “My literary judge sees defendants as inhabitants of a complex web of circumstances, circumstances which often, in their totality, justify mitigation of blame or punishment.”14 The literary perspective, as opposed to the retributive perspective, facilitates “the ability to judge in such a way as to respond with sensitivity to all the particulars of a person and situation.”15 Retributive judgment is undesirable – indeed, unjust – according to Nussbaum, because of its preoccupation with assigning punishments strictly commensurate with wrongdoing.16 Irrespective of extenuating circumstances, or mitigating factors particular to an offender or his offense, the retributive judge, having designated the offender a criminal, can comfortably impose punishment, often harsh punishment, without compunction. The “we/them mentality characteristic of retributivism”17 encourages the judge to distinguish himself from the wrongdoer despite the reality of universal human imperfection. Literary judgment, characterized by sympathetic understanding, requires a judge to focus on the essential humanity of all men – offenders and judges alike. In this way, a judge is more likely to recognize the offender as one who has fallen prey to the difficulties “characteristic of human life” to which all men alike are vulnerable.18 13

The term “judges,” following Nussbaum, is used broadly and includes members of the judiciary as well as the citizen jurors who are responsible for much of the sentencing in criminal trials. 14 Nussbaum, “Equity,” pp. 110–111. 15 Ibid., p. 85. 16 Ibid., p. 101. 17 Ibid., p. 124. 18 Ibid. p. 103.

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As she assesses the Supreme Court’s role in determining sentencing guidelines for capital offenses, Nussbaum finds occasion for both optimism and concern. She applauds the Court’s decision to treat aggravating and mitigating circumstances differently – allowing the defendant greater latitude to present his story – for the purposes of determining the appropriate level of punishment. Under current doctrine, aggravating circumstances, those offered as evidence of an offender’s depraved nature and the brutality of his crime, are judged with reference to a finite list of factors that, if present, will promote an offender to the death-eligible category. Mitigating factors, those which an offender submits for consideration as extenuating circumstances in the commission of his crime, are to be considered after the determination of whether aggravating factors are present and will not be confined to a finite list. In other words, there is an asymmetry, as Nussbaum terms it, between aggravating and mitigating considerations, one that works to the advantage of the offender. Since mitigation is discretionary, it permits consideration of a wider range of factors than does a finite list of aggravating circumstances. According to Nussbaum, this asymmetry is consistent with the literary perspective because it allows for merciful judgment which “can be given only when there is time to learn the whole complex history of the life in question and inclination to do so in a sympathetic manner, without biases of class or race.”19 Despite her approval of the Court’s implicit acceptance of the asymmetry between aggravation and mitigation, however, Nussbaum rejects the Court’s, especially Justice Scalia’s, account of the appropriate role for “sympathetic understanding” (suggnome) and human emotion in the sentencing process.20 Nussbaum’s argument on behalf of mercy – achieved through narrative and sympathetic understanding – is initially quite appealing. The Roman context provides ample evidence that the harshness of punishment must be mitigated and its irrational dispensation checked. Likewise, the narrative approach seems initially to advance the values she identifies as essential for humane criminal justice. Indeed, evidence of the danger of ignoring these

19 20

Ibid., p. 117. Ibid., p. 120.

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values, culled from Greek mythology and contemporary radical feminism, underscores their necessity. In her zeal to advocate these important values, however, Nussbaum mischaracterizes retributivism and disregards the considerable evidence that the present system of criminal justice has embraced the values to which she is committed. Thus, despite the force of her less controversial conclusions – that justice should be individual, particular, and proportional – Nussbaum’s attempt to apply the narrative approach to the modern criminal law in the United States is highly problematic. The radically divergent contexts of ancient Rome, which she implicitly invokes by relying on Seneca’s account of Clementia, and the United States, where she would administer the treatment that Seneca urges, do not generally resemble one another in any of the relevant particulars. Moreover, by introducing the narrative into a healthy system,21 Nussbaum risks infecting it with the scourge it is her mission to eradicate.

II. RETRIBUTION This novel [Mercy] does not read like a traditional novel, because its form expresses the retributive idea that its message preaches . . . it refuses to perceive any of the male offenders – or any other male – as a particular individual, and it refuses to invite the reader into the story of their lives.22

As a means to illustrate the irrational impulses that she associates with retributive justice, Nussbaum offers the “antinovel” of radical feminist Andrea Dworkin. Nussbaum adduces Mercy as “a striking modern example of the strict retributivist position . . . [which] show[s] us how the retributive imagination is opposed to the literary imagination.”23 What is truly striking about Nussbaum’s use of Mercy, however, is her suggestion that it represents a retributivist position, strict or otherwise; that it might be representative 21 The characterization of the present criminal justice system as “healthy” obviously requires qualification. The system is certainly suffering from a variety of ills that may demand radical measures to cure. The point is that the system is not beset by the ailments that Nussbaum is concerned to remedy with the narrative prescription. 22 Nussbaum, “Equity,” p. 84. 23 Ibid., p. 122.

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of the retributivist positions advanced by serious students of the criminal law is even more implausible.24 The protagonist of Dworkin’s “novel” is a woman, “Andrea,” whose life is marked by brutal and virtually unrelenting abuse at the hands of the various men in her life. As a reaction to her victimization, she develops a penchant for indiscriminately (and fatally) karate-kicking anonymous homeless men whom she is either unable or unwilling to distinguish from her many male tormentors. Thus, for Nussbaum, Andrea’s inability to distinguish “ ‘him from him from him’ ”25 causes the reader “to inhabit the retributive frame of mind and to refuse mercy.”26 The “retribution” that Nussbaum showcases bears little resemblance to contemporary theories of retributive justice. Michael Moore defines retributivism as “the view that punishment is justified by the moral culpability of those who receive it.”27 He immedi24

Nussbaum is variously critical of “retribution,” “retributivism,” and “retributive anger.” In the interest of clarity, the three can be distinguished – even within the context of Nussbaum’s argument – although she exhibits no inclination to do so expressly. Retribution is a compensating reaction designed to restore the balance upset by an initial action; a paying back. Nussbaum, “Equity,” p. 88. Retributivism is a theory of punishment based on the moral blameworthiness of wrongdoers, predicated on the assumption that the blameworthy are deserving of punishment. Retributive anger, according to Nussbaum, is the virtually uncontrollable passion that, in its demand for “justice,” is blind to its own cruel excesses. Ibid., p. 101. As a theory of punitive justice, however, retributivism can usefully be distinguished from feelings of retributive anger, the excesses of which Nussbaum – and Seneca – so ably demonstrate. By collapsing the distinctions, as in the following passage, Nussbaum levels her critique with too little precision to credibly implicate modern retributive theories: “Given that Seneca defines mercy as the opposite of cruelty, and given that cruelty is held to be a frequent outgrowth of retributive anger, we can say, putting all this together, that mercy, Clementia, is opposed at one and the same time both to strictness in exacting penalties and also to retributive anger, as if that strictness does indeed lie very close to anger in the heart” (Ibid., p. 102). Retributivism entails neither anger nor cruelty, however, and cannot be casually discredited by such speculative causal inferences or metaphorical roadmaps to the human heart. 25 Ibid., p. 84. 26 Ibid., p. 123. 27 Moore, Michael S., “The Moral Worth of Retribution,” in Ferdinand Schoeman (ed.), Responsibility, Character, and the Emotions (Cambridge: Cambridge University Press, 1987), pp. 179–219, 179. For a similar account,

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ately adds: “A retributivist punishes because, and only because, the offender deserves it.”28 In the absence of a showing of desert, a retributivist is bound to oppose punishment that targets individuals who are not deserving. Additionally, retributivists, as Moore notes, “are committed to the principle that punishment should be graded in proportion to desert.”29 Since it is difficult to imagine a conception of desert that could justify the determination that because some men are wicked, all men deserve to die, it is apparent that Andrea is not recognizably a retributivist.30 Retributivism requires that individuals be punished according to what they deserve; its emphasis on individual desert comports with Nussbaum’s insistence that individuation is a necessary component of justice. It also gives the lie to Nussbaum’s characterization of “Andrea” as an exemplar of the retributivist attitude. What Nussbaum has offered instead is a caricature of retributivism that resembles its true conception in name only. It remains to be seen what application this distinction has in the context of the modern criminal law.

III. JUSTICE AT THE SUPREME COURT In short, the insights of the mercy tradition can take us a long way in understanding what is well and not well done in recent Supreme Court writings about sentencing.31

Nussbaum’s critique of the Court’s position on capital sentencing issues focuses on two recent cases. Although she does not contend that they are representative of such cases, her failure to place them in the larger context of the Court’s capital sentencing decisions see Robert Nozick, Philosophical Explanations (Cambridge: Harvard University Press, 1981), pp. 366–370. 28 Moore, “Moral Worth,” p. 179. 29 Ibid., p. 180. 30 Although it is hard to conceive of a plausible theory of desert in the modern world that would regard gender alone as a basis for deserving punishment, there is some indication that this is Dworkin’s view. As Nussbaum notes, “it is Dworkin’s position . . . that all heterosexual males are rapists and all heterosexual intercourse is rape.” Nussbaum, “Equity,” p. 124. The point is that to hold this view is to forswear retributivism. 31 Ibid., p. 122.

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somewhat distorts her presentation of what is and is not well done. Beginning with the invalidation of state death penalty statutes in 1972, and continuing through to the present day, the Court has sought to ensure that capital sentencing procedures are consistent with the values of justice, balancing concerns for retributive desert with merciful mitigation.32 Retributivism is by no means the only theory of punishment that informs the system of criminal justice in the United States. Various deterrence theories, which emphasize crime prevention over moral desert, also play a role in structuring the institution of criminal punishment.33 Despite the practical appeal of deterrence theories, however, retributivism seems necessary as a means of accounting for people’s common sense convictions regarding punishment for wrongdoers that is not readily captured by preventive deterrence.34 In particular, desert, which is the cornerstone of retributivism (contra Nussbaum), helps determine who will be punished, under what circumstances, and to what degree. These issues can be reconceptualized as the values that animate Nussbaum’s critique of retributive justice: individuation, particu32

Pillsbury, Samuel H., “Emotional Justice: Moralizing the Passions of Criminal Punishment,” Cornell Law Review 74 (1989): 655–710, 701 and passim. Despite Pillsbury’s recognition of the Court’s effort to effect this balance, he offers a critique of the Court, consistent with Nussbaum’s, based on its unwillingness to institutionalize formally the role of appropriate emotions, especially empathy, in the capital sentencing process. 33 Before the modern resurgence of retributive theories of punishment in the 1970s, “preventionist” theories dominated penal practices. Preventionism, as John Braithwaite and Phillip Pettit have characterized it, is motivated by the goal of structuring sentencing in order to incapacitate offenders, to rehabilitate them when possible, and to deter them and others from committing offenses in the future. Such theories fell out of favor when they failed to produce the expected reduction in crime, gave rise to unjust sentencing disparities, and were seen to violate basic assumptions of individual responsibility. Braithwaite, John and Phillip Pettit, Not Just Deserts (Oxford: Clarendon Press, 1990) pp. 2–5. The result, as Braithwaite and Pettit note, has been a hybrid of retributive and preventive approaches to crime. Ibid., p. 205. 34 Moore’s thorough explication of the complex role of retribution in the modern criminal law demonstrates that retributive feelings provide the best account of people’s ordinary moral judgments concerning punishment and responsibility. Moore, “Moral Worth,” p. 99. See also Murphy and Hampton, Forgiveness and Mercy.

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larization, and proportionality. Beginning with Furman v. Georgia in 1972, the Supreme Court has considered a multitude of death penalty appeals that implicate these values. Although Nussbaum suggests that her account of mercy may have implications for the criminal law,35 an analysis of the Court’s performance in death penalty cases reveals an already acute sensitivity to the values she seeks to promote in the name of mercy. A. Individuation In Woodson v. North Carolina36 the Supreme Court held mandatory death penalty statutes unconstitutional. Such statutes arose, in large measure, as a response to the Court’s rejection of discretionary death penalty statutes that were capable of being applied in an “arbitrary” and “capricious” fashion.37 Attempting to remedy the unpredictable effects produced by discretion, states enacted mandatory sentencing laws to reduce the chances that death sentences would be “freakishly” imposed.38 In striking down the North Carolina law, the Court observed that the sentencing process must permit consideration of the “character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.”39 Thus, “in order to ensure the reliability, under Eighth Amendment standards, that death is the appropriate penalty in a specific case,” the Court insisted that defendants must be treated as unique individuals, not as “part of a faceless and inhuman mass.”40 In 1978 the Court, citing Woodson’s holding that individuation was a critical factor in imposing a capital sentence, struck down an Ohio law that provided capital sentencing authorities with only a brief list of potential mitigating factors to which their consideration was limited when contemplating a death sentence. “[R]ecognizing that the concept of individualized sentencing in criminal cases 35 36 37 38 39 40

Nussbaum, “Equity,” p. 115. 428 U.S. 280 (1976). Furman v. Georgia, 408 U.S. 238, 295 (1972) Ibid., p. 310. 428 U.S. at 304. Ibid.

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generally, although not constitutionally required, has long been accepted in this country,”41 the Court indicated that the “need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases [where the principle is well established].”42 Hence, the Court held that “[t]he Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors we now hold to be required by the Eighth and Fourteenth Amendments.”43 Since such relevant factors as the defendant’s age and role in the crime were excluded from consideration, the process failed to meet the minimum requirement of individuation.

B. Particularization In Woodson, the Court objected to North Carolina’s mandatory death sentence in part because of the lack of provision for considering the “relevant facets of . . . the circumstances of the particular offense.”44 In Lockett, the Court determined that “a statute that prevents the sentencer in all capital cases from giving independent weight to . . . circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.”45 Lockett had driven the getaway vehicle during a pawnshop robbery that left the proprietor dead. Although laws that treat aiders and abettors the same as the principal offender for the determination of guilt are commonplace, the Court was impressed by the inflexibility of the Ohio statute since it prohibited consideration of the differential particulars of the various defendants as they bore on the sentencing decision. Resting “on the predicate that the penalty of death is qualitatively different from any other sentence,” the Court concluded that “in capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of . . . the particular offense as a constitu41 42 43 44 45

Lockett v. Ohio, 438 U.S. 586, 602 (1978). Ibid., p. 605. Ibid., p. 606. Woodson, 428 U.S. at 304. Lockett, 438 U.S. at 605.

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tionally indispensable part of the process of inflicting the penalty of death.”46 In Penry v. Lynaugh,47 which primarily concerned the role of mitigating factors during capital sentencing,48 the Court elaborated on the principles established in Woodson and Lockett: [I]t is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant’s character or record or circumstances of the offense. Rather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if the jury is to give a ‘reasoned moral response to the defendant’s background, character, and crime.’49

Instructions to the jury that precluded them from considering Penry’s mental capacity, since it was not a factor relevant to the three specific issues stipulated for mitigation, did not provide an adequate opportunity for them to extend either individual or particular consideration to Penry’s unique circumstances. C. Proportionality As noted above, attributing the call for proportionality to Nussbaum is somewhat problematic. The confusion arises within Nussbaum’s own account of just punishment leavened by mercy. She seems to hold, with Seneca, that mercy (Clementia) is “that which turns its course away this side of that which could be justly determined,”50 and that “[i]t is a fault to punish a fault in full.”51 Despite this apparent endorsement of punishment that stops short of that which is proportional to the crime, Nussbaum is elsewhere at pains to show that justice, with which proportionality is associated, and mercy, with which leniency is associated, are not at odds.52 Whereas the 46

Ibid., p. 604 (quoting Woodson). 492 U.S. 302 (1989). 48 Also at issue in Penry was the constitutionality of executing a mildly mentally retarded individual. Although the Court rejected Penry’s challenge on this basis, it accepted the mitigation argument and remanded the case for further consideration. 49 Penry, 492 U.S. at 328. 50 De Clementia II.3. 51 Ibid., II.7. 52 Nussbaum, “Equity,” p. 96. 47

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rule of law – designed to approximate proportionality – is a crude tool that must apply to many different cases, the role of mercy – preoccupied with the particulars – provides a measure of flexibility for the details that general legal codes cannot anticipate. Thus, proportionality, at least when it is calculated with reference to the individual and the particularities of his deed, can be reasonably attributed to the mercy tradition. The value of proportionality, understood – as Nussbaum implies – as the fit of the punishment to the crime in light of particularities, is the underlying issue in each of the cases cited above. Woodson, Lockett, and Penry, with their concern for the details of the crime and the criminal, reflect the Court’s determination that under certain circumstances – unique to the individual and offense – death is too harsh a punishment. Thus in Lockett, the Court held that a finite list of mitigating factors “creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.”53 Since Lockett’s participation in the robbery was qualitatively different from the principal defendant’s, proportionality required that consideration of her reduced culpability be permitted. Similarly in Penry, proportionality was the essential subtext. In light of the defendant’s retardation, the Court required that a jury must be apprised of any relevant factors the defendant offered for determining whether “death is the appropriate punishment in a specific case.”54 Although the defendant’s retardation was not judged to be dispositive per se, the jury must rightfully be permitted to consider it in the interest of proportionality. Proportionality was directly at issue in Coker v. Georgia,55 a case in which the defendant had been sentenced to death for committing a nonfatal rape. Writing for the Court, Justice White articulated the criteria for determining proportionality, holding that a punishment is unconstitutionally excessive “if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering;

53 54 55

Lockett, 438 U.S. at 605. Penry, 492 U.S. at 328 (quoting Woodson). 433 U.S. 584 (1977).

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or (2) is grossly out of proportion to the severity of the crime.”56 The death penalty, the Court concluded, was grossly out of proportion to the crime of rape. The balance of the Supreme Court’s capital punishment decisions attest to the fundamental importance it attaches to individuation, particularization, and proportionality – the values that Nussbaum believes are essential to justice.57 In light of this, her harsh denunciation of retributivism seems misplaced. Indeed, in advocating the narrative art as a means of safeguarding the values of justice already recognized in the modern criminal law, Nussbaum may have miscalculated the potential consequences of her prescription for mercy.

IV. THE NARRATIVE ART The narrative . . . attitude asks the judge to imagine what it was like to have been that particular offender, facing those particular obstacles with the resources of that history.58

Nussbaum is persuaded that a knowledge of the particulars of a case “lead[s] toward extenuation or mitigation far more frequently than in the opposite direction.”59 The novel, as “an artificial construction of mercy,” serves as a model for introducing storytelling into the criminal law because of “its formal commitment to following complex life histories, looking at the minute details of motive and intention and their social formation.”60 Inviting the reader to share the experiences of the protagonist – from the point of view of the protagonist – causes him to judge the character’s actions more sympathetically. In the legal context, the judge’s ability to identify 56

Ibid., p. 592. Many more cases could be cited, but in most instances they simply reiterate the principles already articulated. To conclude that the “balance” of the Court’s decisions demonstrates the Court’s success at, what Nussbaum has called, “getting the life right,” is simply to say that it has demonstrated a commitment to the values which facilitate that effort. That it sometimes fails to arrive at what seems to be the correct judgment does not, by itself, undermine that commitment. 58 Nussbaum, “Equity,” p. 93. 59 Ibid., p. 90. 60 Ibid., p. 105. 57

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with the circumstances of the defendant through sympathetic understanding mitigates against the “retributive attitude [characterized by a] we/them mentality, in which judges set themselves above offenders, looking at their actions from a lofty height and preparing to find satisfaction in their pain.”61 Relying on the tragic figures familiar from Greek drama, Nussbaum constructs a compelling case for the importance of narrative in criminal justice that derives its force precisely from the freakish circumstances in which those figures found themselves. Thus, apart from the misrepresentation of retributivism already noted, Nussbaum’s assertions are problematic because they rest on evidence that is inapposite to the context for which she means it to be instructive. Moreover, her prescription for narrative is dangerous because it invokes the perspective of the novel but fails to follow its application to its logical conclusion. The effect of Nussbaum’s effort is to lend support to those who would deploy the narrative art – more faithfully than Nussbaum – to infuse the judicial sentencing process with a degree of emotionalism that runs counter to the values of justice. A. Tragedy and Justice Oedipus stands as perhaps the most visible symbol of divine justice gone awry. Held responsible for actions entirely beyond his control, Oedipus’s tragic fate illustrates the danger of strict liability – indifferent to the particularities of circumstance and inflexible in its provision for punishment. Nussbaum recognizes that it is almost inconceivable that an awareness of Oedipus’s circumstances would not tend to inspire mercy in a sympathetic observer, mercy and sympathy that the ancient concept dike denies effect. Dike, as Nussbaum renders it, is strict justice that entails retribution, or the restoration of balance. “This retributive idea,” she notes, “is committed to a certain neglect of the particulars.”62 Like Anaximander’s account of the natural elements’ “encroachments” from season to season, retribution consists in meeting “invasion” with “counterinvasion” without regard for culpability.63 From here, 61 62 63

Ibid., p. 103. Ibid., p. 89. Ibid., p. 88.

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eliding more than two thousand years of history, Nussbaum arrives at the modern conception of retribution – as embodied by Dworkin’s novel – that, like its ancient ancestor, “entails neglect of the particularity of the so-called offender; it neglects, too, the questions of motive and intention that one might think crucial in just sentencing.”64 Oedipus, she suggests, would not escape the forces of retributive balance. The example of Oedipus, on closer inspection, does not advance Nussbaum’s critique of the retributive attitude. Having conflated dike with retributivism, Nussbaum implies that the harshness of the former – which would punish an “offender” so clearly blameless – can be ascribed to the latter – which is discredited thereby. Observing the philosophical affinity between ancient dike and modern retributivism, Nussbaum implausibly suggests that the circumstances of Oedipus’s “crimes” would not be exculpatory under a system of modern law that fails to embrace the narrative art. In fact, the bizarre details of Oedipus’s peculiar situation would be considered under any serious contemporary retributive theory; it is virtually inconceivable that he would suffer criminal punishment as a result.65 His “ignorance of crucial information”66 would undoubtedly be exculpatory, unless “Andrea” herself were presiding over the trial. In addition to the failure of the Oedipus example to justify the rich narrative approach that Nussbaum advocates, it further undermines the likelihood that such an approach can be expected to yield merciful judgments. Surely the particulars of Oedipus’s circumstances – cursed at birth, chance encounter that leaves father 64

Ibid., p. 90. The modern conception of justice, similar to Aristotle’s, distinguishes between actions that are voluntary and involuntary: “Actions are regarded as involuntary when they are performed under compulsion or through ignorance.” Nicomachean Ethics III.i, J.A.K. Thomson trans. (New York: Penguin Books, 1955) (emphasis added). Although Nussbaum praises Aristotle’s relatively progressive account of equity, Nussbaum, “Equity,” pp. 93–96, she judges it inadequate for achieving mercy since once responsibility is accurately assigned, proportionate punishment must follow. Ibid., p. 97. Both Aristotle’s conception of justice and that operational in the modern criminal law would, however, despite Nussbaum’s implication, be bound to address the issue of Oedipus’s responsibility in light of his ignorance of crucial information. 66 Nussbaum, “Equity,” p. 90. 65

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dead, savior of city, marriage to mother – are sufficiently improbable that he cannot be regarded as representative of those who kill their parents or commit incest. Yet Nussbaum offers a different interpretation of the example of Oedipus: There may be some cases of parricide and incest that are produced by an especially or unusually blameworthy degree of hatred or wickedness, going beyond the responsible deliberateness assumed by the law, but the claim is that this is likely to be a smaller class than the Oedipus-type class, given the character of human life and the nature of human motivation.67

Nussbaum’s conclusion – that acts of wrongdoing, at least a disproportionate number of them, “are produced by obstacles such as failure of knowledge, mistaken identification, bad education, or the presence of a competing moral claim” – is a highly speculative empirical claim for which she provides no evidence.68 At a minimum, her assertion is counterintuitive. The tragedy of Oedipus is compelling precisely because of the extraordinary circumstances – the failure of knowledge, the mistaken identification, and the presence of competing moral claims – confronting him. The suggestion that most modern instances of incest and parricide are similarly marked by extenuating circumstances such as those Oedipus faced is dubious. Indeed, it is difficult to fathom a clash of values – except in the case of Oedipus – which renders incest an excusable transgression.69 As further support for the clash-of-values argument, Nussbaum offers “the terrible dilemmas faced by characters such as Agamemnon, Antigone, and Creon, and the terrible moral defectiveness of all their options.”70 Like Oedipus, their circumstances 67

Ibid., p. 91. Ibid. 69 The point is not that other unusual cases of incest and parricide do not occur, but rather that the mitigating circumstances so plainly evident in the case of Oedipus seem exceptional, not commonplace. To the extent that such circumstances do obtain, the modern criminal law is well equipped to discover and act upon them. 70 Nussbaum, “Equity,” p. 94. The myth of Antigone and Creon is cast in a very different light by the twentieth-century playwright Jean Anouilh. In Anouilh’s adaptation, Sophocles’s tragic figures become recognizably human, complete with ordinary foibles and base motivations. The richer narrative detail found in Anouilh’s play, ironically in light of Nussbaum’s prescription, paints a 68

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counsel against strict justice and in favor of “merciful mitigation.”71 Also like Oedipus, however, their dilemmas seem unusually highminded and far-removed from the acts of depravity that incur the penalty of death under the modern criminal law.72 Thus, once the threshold safeguards relevant to these tragic anomalies are met – as they largely are in the modern criminal law – it is unclear what constructive role remains for narrative. B. Narrative and the Law The role of narrative in the criminal law, Nussbaum indicates, is to provoke sympathetic understanding among those who would judge their fellows: “The merciful judge will not fail to judge the guilt of the offender, but she will also see the many obstacles this offender faced as a member of a culture, a gender, a city or country, and, above all, as a member of the human species, facing the obstacles characteristic of human life in a world of scarcity and accident.”73 Coupled with a recognition that all humans are imperfect, the sentencing judge weighs the particular obstacles and circumstances that undermine the effort “for mere human beings to measure up” to the high standards of justice.74 As her model for the narrative art appropriate for expressing the relevant considerations in the context of the criminal law, Nussbaum relies on the novel. In particular, David Copperfield and Because It Is Bitter and Because It Is My Heart exemplify the propensity for the narrative imagination to inspire sympathy and mercy. In Dickens’ novel, David “suspends punitive judgment on Steerforth’s acts, so the imagination of the narrator – and of the reader – is led to turn aside, substituting for punishment an understanding of Steerforth’s less sympathetic portrait of both characters. Anouilh, Jean, “Antigone,” (Lewis Galantiere trans.) in Five Plays (New York: Hill & Wang, 1958 [1944]). 71 Nussbaum, “Equity,” p. 95. 72 A potentially interesting exception to this characterization of depraved criminality, is the issue of mercy killing. Although such defendants are not likely to be sentenced to death – which suggests the weakness of Nussbaum’s argument – the modern law seems morally conflicted about the clash of values such offenses bring to light. 73 Nussbaum, “Equity,” p. 103. 74 Ibid., p. 91.

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life story.”75 Joyce Carol Oates, elaborating on the particulars of her novel’s ineffectual protagonist, narrated “the story of Leslie’s life, the efforts he had made, the formidable social and psychological obstacles in the way of his achieving more, politically, than he had – speaking of him as a friend whose life inhabited her own imagination and whom, on that account, she could not altogether dismiss or condemn.” 76 In its detailed depiction of the characters’ lives, the novel invites the reader to respond with sympathetic understanding. Nussbaum rests considerable weight on the novel as a model for the narrative art, but it may import more detail into the legal process than is compatible with her concern for mercy. Although she wishes to distinguish the relevant narrative of the defendant from the extraneous details of the impact of the criminal’s act on the lives of his victims, the literary form she embraces denies this distinction. The exclusion of victim impact statements, which detail the value of the victim’s life and the magnitude of his loss to the survivors, denies, to use Nussbaum’s phrase, “novelistic readership.”77 Nussbaum attempts to cast the selective inclusion of the particulars – limited to the defendant’s story – as a principled distinction, since a “criminal trial is about the defendant and what will become of him or her.”78 But a novel, the model for the narrative art in the law, relates the story of the principal as well as the characters with whom he interacts. David Copperfield, to the extent that it is the story of Steerforth (as opposed to David), nevertheless includes an account of his many transgressions against Mr. Mell, Em’ly, and the Peggotty family. The exclusion of the victim’s story as it bears on the defendant’s, if the novel format is to be taken seriously, represents a distortion of the narrative. Nussbaum’s insistence that her view does not entail the endorsement of victim impact statements cannot be reconciled with the 75

Ibid., p. 108. Ibid. Oates’ oral narrative came in response to a student’s denunciation of the character as she met him in the novel. Nussbaum lets pass without comment the telling implication of the story she tells to promote the effectiveness of narrative: Why didn’t the student respond to the character in the novel with sympathetic understanding? Nussbaum’s story seems to illustrate a failure of the narrative art rather than its vindication. 77 Ibid., p. 122. 78 Ibid., p. 121, n. 93. 76

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narrative art that constitutes a novel. What Nussbaum advocates, rather, is a character sketch of the defendant, selectively presented to provoke maximum sympathy. The image appropriate to Nussbaum’s project is a three-dimensional defendant strategically posed against a one-dimensional backdrop. The novel, in its comprehensive detail, is less readily manipulable. C. Victim Impact By prescribing the narrative art and taking the novel as her model, Nussbaum unwittingly invites the spectacle of victim impact into the judicial process. Her criticism of Dworkin’s “antinovel” for its stark portrayal of the characters who inhabit Andrea’s world may be applied as well to her own conception of the novel form: “it refuses to perceive any of the male offenders – or any other male – as a particular individual and refuses to invite the reader into the story of their lives . . . others exist only as sources of her pain.”79 In Nussbaum’s “novel,” others exist only as faceless objects of victimization with no story of their own. Victim impact statements are designed to impress upon the sentencing authority the real life effects – the actual harm – of a criminal act. The suffering of the victim, the pain of his survivors, and the impassioned pleas for “justice” characteristic of victim impact statements, as the Supreme Court determined in 1987, serve “to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant.”80 Nussbaum concurs, noting that the function of such statements “seems primarily to lie in giving vent to the passion for revenge, and the emotions they seek to arouse are those associated with that passion.”81 The values of modern justice – individuation, particularization, and proportionality – are overwhelmed by the infusion of vengeful emotionalism82 that Nussbaum – and Seneca – are 79

Ibid., p. 84. Booth v. Maryland, 482 U.S. 496, 508 (1987). 81 Nussbaum, “Equity,” pp. 122–123, n. 91. 82 “Vengeful emotionalism” seems an apt phrase for characterizing the victim impact statement at issue in Booth. Among the most inflammatory statements is the victims’ daughter’s assertion that “her parents were stabbed repeatedly with viciousness,” since it isn’t clear how she could know in what manner they 80

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committed to reject. Yet the narrative she prescribes is bound to permit it. In 1991, in Payne v. Tennessee,83 the Supreme Court reversed itself, holding that victim impact statements are a constitutionally permissible source of information for the determination of a capital sentence. In one sense, the Court’s decision represents the full realization of Nussbaum’s narrative vision. It also reflects the institutionalization of storytelling as a legitimate weapon in the arsenal of those who press their claims for justice. But as with any powerful weapon, its proliferation is inevitable and dangerous. Thus, despite Nussbaum’s protestations, those who live by the narrative may die by it. The introduction of victim impact statements portends the sort of emotionally charged decision-making that the Court has previously sought to disqualify. Indeed, many critics of the Court have noted its reflexive hostility to emotional considerations of any kind in the context of capital sentencing; the goal of reform should be to distinguish the emotions necessarily and appropriately incorporated into sentencing decisions from those that detract from thoughtful decision-making.84 Nussbaum’s prescription, by contrast, with its embrace of the novelist’s art, fosters an atmosphere congenial to the growth and nurture of unqualified emotionalism. In his account of the role of emotions in capital sentencing, Pillsbury identifies the potential for mischief which highlights the danger of Nussbaum’s “novel” approach: Emotional reactions heighten the urge to oversimplify. Emotions, as mythological structures, have a symbolic purpose. They transform complex reality into something simpler and more readily meaningful to the observer. They are like dramatic works, designed to make persons and events appear larger, and simpler, than life. If their mythologic functions go unchecked, the offender becomes a cardboard were stabbed. Further, that “she [the daughter] doesn’t feel the people who did this could ever be rehabilitated,” Booth Appendix A, is irrelevant to the issue of whether they can or ought to be, and is a judgment that one supposes she is not competent to make. 83 501 U.S. 808 (1991). 84 See, e.g., Pillsbury, “Emotional Justice”; Cobb, Jr., Paul Whitlock, “Reviving Mercy in the Structure of Capital Punishment” Yale Law Journal 99 (1989), pp. 389–409.

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character in a B movie, a caricature instead of a character, a symbol instead of a person.85

Although Nussbaum invokes greater works of fiction – Sophocles, Dickens, and Oates – her effort to include only those aspects of the story that reflect favorably on the defendant ensures that her narrative will not provide a faithful rendition of a criminal deed. Encouraging sentimentality in the context of sentencing, then denying the relevance of the victim’s story, Nussbaum’s formula precludes the possibility of arriving at a correct understanding of a case; selective inclusion is untenable given the comprehensive scope of the novel form. And in a contest for the sympathies of a sentencing authority, the offender, however moving his personal story, is unlikely to prevail over his innocent victim.

IV. CONCLUSION In a world in which emperors mutilate their enemies for fun, looking into oneself is an act of public courage, and of humanity.86

With the best of intentions, Nussbaum attempts to import the lessons of Seneca’s Rome into the modern criminal law. To be sure, the ancient world’s experience with irrational cruelty and brutal “justice” graphically illustrates the uniquely human vulnerability to passionate excess; contemporary examples of human depravity attest to the continuing relevance of Seneca’s insights into the human condition. But the application of Seneca’s narrative prescription to the modern criminal law offers a cure for an ill that no longer afflicts the judicial process. The values that Seneca and Nussbaum regard as essential to justice, attention to the particularities of circumstance that distinguish each case from every other, are already operational in the modern law. By advocating the narrative perspective characteristic of the novel, Nussbaum offers a formula for emotionalism and sentimentality that is unlikely to serve the interests of the wrongdoer. By taking the novel as her model, she is committed 85

Pillsbury, “Emotional Justice,” p. 691. Martha Nussbaum, The Therapy of Desire (Princeton: Princeton University Press, 1994), p. 426. 86

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to the whole story, not merely the sympathetic portrayal of the defendant. A. Some Implications Concern for the humane treatment of defendants, especially in the context of capital sentencing, has spawned a formidable body of literature advocating a prominent role for mercy in the administration of justice.87 Many critics share Nussbaum’s dissatisfaction with the Supreme Court’s decisions regarding the role of emotions in the sentencing process, as well as the inadequate provision for merciful considerations.88 The Court’s decision in California v. Brown,89 according to such critics, exhibits the Court’s insensitivity to the nuances of merciful judgment. In Brown, the Court approved a jury instruction that cautioned jurors against being “swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling”90 in their determination of a sentence in a capital trial. The Court’s error, according to Nussbaum, was in accepting the wholesale denunciation of emotions, including those which are appropriately excluded from sentencing decisions such as prejudice and public feeling, as well as those she regards as essential to just sentencing such as sentiment, passion, and sympathy.91 Thus, despite qualified approval of the Court’s recognition of the importance of discretionary latitude in the consideration of mitigating factors, Nussbaum, and likeminded advocates for a more prominent role for emotions in sentencing, encourages the Court to acknowledge the legitimacy, and inevitability, of human emotions in the capital sentencing process. 87

See, e.g., Schroeder, Mary M., “Compassion on Appeal” Arizona State Law Journal 22 (1990), pp. 45–52; Kobil, Daniel T., “The Quality of Mercy Strained: Wresting the Pardoning Power from the King” Texas Law Review 69 (1991), pp. 569–641. 88 See, e.g., Pillsbury, “Emotional Justice”; Cobb, “Reviving Mercy in the Structure of Capital Punishment”; Muller, E. L., “The Virtue of Mercy in Criminal Sentencing” Seton Hall Law Review 24 (1993), pp. 288–346; Bandes, Susan, “Empathy, Narrative, and Victim Impact Statements,” University of Chicago Law Review 63 (1996), pp. 361–412. 89 479 U.S. 538 (1987). 90 Ibid., p. 539. 91 Nussbaum, “Equity,” p. 120.

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The Court’s hostility toward emotional decision-making in the context of capital sentencing is based on a misconception concerning the antagonism between reason and emotion, rational and irrational decision-making.92 As Pillsbury notes, American law is animated by its commitment to rational inquiry, and consciously labors to suppress “emotive influence,” especially in the context of capital sentencing where emotions run notoriously high.93 Indeed, the association of emotion with vengeful and bloodthirsty mobs contrasts dramatically with the solemnity and decorum of formal legal proceedings. The mistake, according to Pillsbury, is to assume from this that emotions lead necessarily to injustice.94 In several death penalty cases, the Court has relied on this facile distinction between reason and emotion, endorsing sentencing procedures designed to mitigate the effects of the latter on the former.95 Pillsbury’s analysis of the Court’s effort to exclude emotional considerations from the sentencing process provides a useful framework for distinguishing between emotions that appropriately affect the sentencing decision and those that detract from morally cogent decision-making. The account of emotive decision-making he offers is instructive because it confronts directly the tension between justice conceived as the rule of law and justice as merciful mitigation. Whereas Nussbaum equivocates about the relationship between justice and mercy – casting them by turns as adversarial and compatible – Pillsbury recognizes that the consistency essential to the rule of law, that is, treating like cases alike, is to some degree at odds with a system that gives free rein to discretionary judgment.96 His taxonomy of the emotions is designed to confine discretionary judgment to morally relevant considerations. Empathy, he concludes, is the appropriate disposition for those who would pass judgment on their fellows.97 92

Pillsbury, “Emotional Justice,” p. 655; Nussbaum, Martha C., Poetic Justice (Boston: Beacon Press, 1995). 93 Pillsbury, “Emotional Justice,” p. 655. 94 Ibid., p. 656. 95 See, e.g., Gardner v. Florida, 430 U.S. 349, 358 (1977); Booth, 482 U.S. at 508–509. 96 Pillsbury, “Emotional Justice,” p. 708. 97 Pillsbury distinguishes empathy from sympathy, noting the that the latter’s motivation is self-love, i.e., feeling compassion for a defendant based on the

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The virtue of Pillsbury’s prescription for directing rather than denying the emotional component of just decision-making is the availability of a standard criterion for gauging the legitimacy of discretionary considerations.98 Nussbaum’s argument on behalf of sympathetic understanding, as exemplified by novelistic readership, encourages the indiscriminate inclusion of detail, offering little more than a hope that the results will be merciful and just; Pillsbury’s proposal, which shares the commitment to “novelistic detail” as a feature of just sentencing,99 offers a principled basis for excluding extraneous considerations, such as rage, vengeance, and sympathetic identification, that are counterproductive to the goal of justice. The importance of mercy in the administration of justice – conceived as consideration for the uniqueness of an individual offender and the particular attributes of his crime – cannot be gainsaid. The controversy arises when mercy is conceived in opposition to justice, or when other values, such as the rule of law and the retributive notion of desert, are sacrificed in mercy’s name. Critics who reproach the Court for its inconsistency in affirming the importance of discretionary mitigation while denying the legitimacy of emotional considerations are insufficiently mindful of the tension between the demands of justice advanced by the rule of tendency of an individual to identify with those who share one or more of his (morally arbitrary) attributes. Empathy, by contrast, “leads to moral understanding by revealing another person’s moral perspective” and encourages cognitive attention to the particularities of circumstance that contributed to the defendant’s morally flawed choice. Ibid., pp. 693–694 (emphasis added). 98 To conclude that Pillsbury’s proposal has a “standard criterion” is not to suggest that it promises an easy formula for distinguishing the effects of constructive emotional considerations from destructive ones. Rather, as he indicates, it operates as a guide for decision-makers, helping them determine the bases of a moral judgment; it does not, however, provide a basis for after-the-fact assessments of the soundness of the decision-making process. Ibid., p. 709. Pillsbury himself denies the viability of concrete rules, divorced from emotional reactions, to structure capital sentencing decisions. Ibid., p. 669. Cobb, concerned that “rules normally will trump the much vaguer notion of mercy,” Cobb, “Reviving Mercy,” p. 399, goes even further, encouraging the elimination of references to mercy in jury instructions with the hope that “[s]ilence about mercy would ensure that mitigating background and character evidence introduced by defendants would not necessarily be disregarded as irrelevant sympathetic factors.” Ibid., p. 405. 99 Pillsbury, “Emotional Justice” p. 664.

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universally applicable law and those advanced through discretionary consideration of potentially mitigating factors. Furman v. Georgia, with its rejection of unguided sentencing discretion, responded to the injustice of arbitrary decision-making in the context of capital sentencing; current proposals, which repudiate the Court’s effort to institute such guidelines, risk returning the sentencing process to the pre-Furman disparities that plagued the administration of justice in capital sentencing decisions. The Supreme Court’s death penalty jurisprudence is characterized by a commitment to the values essential to justice – individuation, particularization, and proportionality. Although the Court has had only limited success in institutionalizing mercy in the capital sentencing process, its piecemeal progress reflects the magnitude of the task and the complexity of the competing values implicated in the process. There is ample latitude for the Court to refine its understanding of the role of emotions in capital sentencing; it should continue to reject reforms, such as Nussbaum’s, that endeavor to institutionalize emotive decision-making but lack a method for distinguishing reflective emotional commitments from reflexive emotional impulses. Justice, instantiated in the United States in the rule of law, is sufficiently flexible to accommodate a broad range of particularized considerations when assigning punishment; it must not be compromised by unbridled emotional discretion, even in the interest of mercy. University of Pennsylvania Philadelphia, PA E-mail: [email protected]