The story of justice: Retribution, mercy, and the role of emotions in the capital sentencing process

Law and Philosophy

Volumn 19, Issue 3, 2000, Pages 339-367

  Sigler, Mary ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

Author keywords

Capital sentencing; Emotions; Mercy; Narrative; Nussbaum; Retribution

Indexed keywords

EID: 0034373407     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505179     Document Type: Article

References (122)

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.
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. 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.
7. 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.
8. Ibid., p. 93.
9. Ibid., p. 97.
10. Ibid., p. 86.
11. Ibid., p. 124.
12. Ibid., p. 125.
13. 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 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.
14. 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 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.
15. 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 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.
16. 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 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.
17. 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).
18. 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).
19. 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.
20. Nussbaum, "Equity," pp. 110-111.
21. Ibid., p. 85.
22. Ibid., p. 101.
23. Ibid., p. 124.
24. Ibid. p. 103.
25. Ibid., p. 117.
26. Ibid., p. 120.
27. 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.
28. Nussbaum, "Equity," p. 84.
29. Ibid., p. 122.
30. 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.
31. 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.
32. 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.
33. Ibid., p. 84.
34. Ibid., p. 123.
35. 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, see Robert Nozick, Philosophical Explanations (Cambridge: Harvard University Press, 1981), pp. 366-370.
36. 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, see Robert Nozick, Philosophical Explanations (Cambridge: Harvard University Press, 1981), pp. 366-370.
37. Moore, "Moral Worth," p. 179.
38. Ibid., p. 180.
39. 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.
40. Ibid., p. 122.
41. 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.
42. 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.
43. The result, as Braithwaite and Pettit note, has been a hybrid of retributive and preventive approaches to crime. Ibid., p. 205.
44. 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.
45. 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.
46. Nussbaum, "Equity," p. 115.
47. 428 U.S. 280 (1976).
48. Furman v. Georgia, 408 U.S. 238, 295 (1972)
49. Ibid., p. 310.
50. 428 U.S. at 304.
51. Ibid.
52. Lockett v. Ohio, 438 U.S. 586, 602 (1978).
53. Ibid., p. 605.
54. Ibid., p. 606.
55. Woodson, 428 U.S. at 304.
56. Lockett, 438 U.S. at 605.
57. Ibid., p. 604 (quoting Woodson).
58. 492 U.S. 302 (1989).
59. 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.
60. Penry, 492 U.S. at 328.
61. De Clementia II.3.
62. Ibid.,IL7.
63. Nussbaum, "Equity," p. 96.
64. Lockett, 438 U.S. at 605.
65. Penry, 492 U.S. at 328 (quoting Woodson).
66. 433 U.S. 584 (1977).
67. Ibid., p. 592.
68. 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.
69. Nussbaum, "Equity," p. 93.
70. Ibid., p. 90.
71. Ibid., p. 105.
72. Ibid., p. 103.
73. Ibid., p. 89.
74. Ibid., p. 88.
75. Ibid., p. 90.
76. 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.
77. 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.
78. 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.
79. Nussbaum, "Equity," p. 90.
80. Ibid., p. 91.
81. Ibid.
82. 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.
83. 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 less sympathetic portrait of both characters. Anouilh, Jean, "Antigone," (Lewis Galantiere trans.) in Five Plays (New York: Hill & Wang, 1958 [1944]).
84. 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 less sympathetic portrait of both characters. Anouilh, Jean, "Antigone," (Lewis Galantiere trans.) in Five Plays (New York: Hill & Wang, 1958 [1944]).
85. Nussbaum, "Equity," p. 95.
86. 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.
87. Nussbaum, "Equity," p. 103.
88. Ibid., p. 91.
89. Ibid., p. 108.
90. 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.
91. Ibid., p. 122.
92. Ibid., p. 121, n. 93.
93. Ibid., p. 84.
94. Booth v. Maryland, 482 U.S. 496, 508 (1987).
95. Nussbaum, "Equity," pp. 122-123, n. 91.
96. "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 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.
97. 83 501 U.S. 808 (1991).
98. 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.
99. 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.
100. Pillsbury, "Emotional Justice," p. 691.
101. Martha Nussbaum, The Therapy of Desire (Princeton: Princeton University Press, 1994), p. 426.
102. 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.
103. 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.
104. 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.
105. 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.
106. 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.
107. 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.
108. 89 479 U.S. 538 (1987).
109. Ibid., p. 539.
110. Nussbaum, "Equity," p. 120.
111. Pillsbury, "Emotional Justice," p. 655; Nussbaum, Martha C., Poetic Justice (Boston: Beacon Press, 1995).
112. Pillsbury, "Emotional Justice," p. 655; Nussbaum, Martha C., Poetic Justice (Boston: Beacon Press, 1995).
113. Pillsbury, "Emotional Justice," p. 655.
114. Ibid., p. 656.
115. See, e.g., Gardner v. Florida, 430 U.S. 349, 358 (1977); Booth, 482 U.S. at 508-509.
116. Pillsbury, "Emotional Justice," p. 708.
117. 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 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).
118. 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.
119. 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.
120. 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.
121. 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.
122. Pillsbury, "Emotional Justice" p. 664.