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

This project explores the "contradiction" that critics contend lies at the heart of the Supreme Court's capital sentencing jurisprudence. The doctrine of "guided discretion," represents the Court's attempt to achieve both consistency and individuation in capital sentencing. Guided discretion rejects the unbridled sentencing discretion of an earlier era that resulted in sentencing decisions that were "arbitrary and capricious." At the same time, guided discretion requires juries to give individualized consideration to the facts and circumstances of individual defendants. Critics contend that (...) consistency and individuation are mutually exclusive, and that "guided discretion" is a contradiction in terms. ;The analysis first attempts to isolate the moral dimension of the capital punishment debate, arguing that such analytical clarity is essential to any defensible view of capital punishment. Second, it sets forth and defends the coherence approach to moral and legal justification, according to which the specific moral and legal principles relevant to capital sentencing are evaluated for their compatibility with the principles of the legal system more generally. Third, the analysis canvasses the traditional justifications for punishment, as well as the development of the Court's capital sentencing jurisprudence, and identifies retribution and deterrence as the most promising rationales for the death penalty. Fourth, the claim of contradiction is considered in the context of legal liberalism, which, contrary to critics, has ample resources to accommodate the doctrinal balancing act that guided discretion entails. Moreover, examination of a typical capital sentencing statute establishes that the doctrine of guided discretion is compatible with at least some forms of retributivism and with traditional principles of deterrence. Finally, the analysis recognizes the limits of philosophical consistency. The capital sentencing process presents daunting practical challenges that a theoretical defense of guided discretion cannot fully address. Substantial reforms are needed before the theoretical coherence of guided discretion can be translated into a constitutionally defensible capital sentencing process. (shrink)

Siblings Carol and Jordan Steiker come by their opposition to capital punishment honestly. As law clerks to Justice Thurgood Marshall, an inveterate abolitionist, they observed and participated in...

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. (shrink)