The Story of Justice: Retribution, Mercy, and the Role of Emotions in the Capital Sentencing Process

Law & Philosophy, Vol. 19, p. 339, 2000

29 Pages Posted: 9 Sep 2009

See all articles by Mary Sigler

Mary Sigler

Arizona State University - College of Law

Date Written: 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.

Keywords: Retribution, capital sentencing, emotions

Suggested Citation

Sigler, Mary, The Story of Justice: Retribution, Mercy, and the Role of Emotions in the Capital Sentencing Process (2000). Law & Philosophy, Vol. 19, p. 339, 2000, Available at SSRN: https://ssrn.com/abstract=1469739

Mary Sigler (Contact Author)

Arizona State University - College of Law

111 E. Taylor Street
Phoenix, AZ 85004
United States

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