Alternative Law Journal
Australia still suffers the international embarrassment of mandatory prison sentences for property crimes, in the Northern Territory and Western Australia. The governments concerned continue to uphold this legislated imposition on their courts, despite widespread criticism and pressure for repeal. The criticism is not misplaced, for mandatory sentencing is morally and legally indefensible. Its fundamental flaw is that it does away with judicial discretion in sentencing, a latitude necessary to ensure that punishments are reasonably appropriate to the degrees of seriousness, in terms of both harmful impact and responsibility, of criminal acts. Discretionary leeway to allow judges to take into account mitigating factors when sentencing is quite rightly a basic aspect of the common law traditions operative in most English-speaking countries. Mandatory sentencing was bound to result, as it has done, in such morally ludicrous punishments as the imprisonment of a teenager for stealing a packet of biscuits. Another common criticism in the Australian context is that the mandatory sentencing laws have exacerbated, for no good reason, the disproportionate impact of the criminal justice system on the indigenous population. As a result of relatively extreme impoverishment and marginalisation Aboriginal Australians suffer a far higher rate of incarceration than any other ethnic grouping in the country. Mandatory sentencing just adds to the unequal burden of imprisonment they endure. For this reason the laws have been condemned, both locally and internationally, as racist.
The case for the repeal of the mandatory sentencing laws is simple and overwhelming. You don’t need to probe any great depths of jurisprudential profundity to find sufficient reason for opposing them. The present fight about them is only (only?) a battle against the forces of unreason. It’s something of a pity, though, that the theoretical issue is so clear-cut. If matters had been a little more complex then the furore might have prompted some deeper public reflection about judicial reasoning, especially in respect of penalties; it might have brought to wider attention some of the more deeply ethical aspects of the traditions that inform our common law. Maybe a more searching debate could have helped combat some of the simplistic perceptions of judicial inadequacy that bolster support for mandatory sentencing — in particular, the common feeling that our courts are too lenient on offenders. Leniency in sentencing is widely held to be a bad thing; the business of the courts, so it is thought, is not to dispense mercy but to enforce the law by imposing prescribed amounts of ‘time’ for specific crimes; mitigating factors should not be given much emphasis. Support for mandatory sentencing, such as it is, derives largely from the view that the interests of both justice and the deterrence of anti-social behaviour would be better served if judges and magistrates imposed harsher penalties than they are generally inclined to impose when allowed substantial degrees of latitude.
Should justice, in the context of administering the rule of law through the courts, be gentle and merciful or harshly retributive? Is justice better served by sentencing that is lenient because it is informed by wide consideration of mitigating factors and circumstances, or harsh because it is narrowly focused on the nature and impact of the offence? These are deep questions. And if there are better reasons favouring a general disposition towards judicial leniency rather than the reverse then they will also reveal what is more deeply wrong with mandatory sentencing than the fairly obvious criticisms levelled against it in Australia so far.
Martha Nussbaum, one of the more prominent moral philosophers in the world today, has published in recent times two important works (one a book, the other an essay) that discuss the judicial role. She has drawn on a long tradition of moral and jurisprudential thought that stretches back as far as the ancient Greek philosophers and the Roman Stoics. And she has built a case for a general inclination towards compassion and mercy on the part of public decision makers, in particular judges and magistrates, on the basis of argument that public rationality should be informed by literary imagination, by the sort of empathetic capacities and sensibilities needed by both readers and writers of novels. In part her ideas were shaped by time spent teaching a course at the University of Chicago law school on literature and the law, an area of exploration apparently deemed by the faculty to be a valuable part of a legal education. Nussbaum has made, I think, an invaluable contribution to an ethical understanding of the judicial role in criminal cases, especially their sentencing phases, and also and more generally of the role that involvement in the literary arts can play in moulding judicious yet compassionate public deliberation. It’s impossible to summarise quickly all the intricacies and subtleties of Nussbaum’s argument, or the full scope of her conclusions. Here I will only be able to sketch a few of her key points bearing fairly directly on the ethico-legal importance of judicial leeway in sentencing, and judicial leniency.
As a starting point we can notice the similarities she draws between, on the one hand, the understanding and reasoning required of judges dealing with particular cases, and on the other hand, the capacities that readers of modern realistic novels must exercise in order to understand and appreciate these works. (In Poetic Justice she extensively discusses Charles Dickens’ Hard Times as an example of the congruities she has in mind.) First of all there is narrative particularity itself. Novels, of course, no matter how much they jump about, tell stories about particular people in specific situations and social circumstances; they tie together particular lives, events and situations into narrative wholes; the attention of readers is directed in the first instance to individuals and their concrete circumstances rather than the general and the abstract; so novels enable readers to immerse themselves in particular situations they have not directly experienced. Judges also must deal with narratives about individuals and their actions in specific circumstances; when considering the cases that come before them they must try to understand the story of what has happened in all its messy contingent detail; not only must they be versed in general laws, they must also be attentive to the concrete contingent features of particular case-stories, for the common law tradition treats particular cases as infinitely and unpredictably variable in specific features that bear on whether, and the extent to which, general laws are justly applicable to them.
Secondly, there is the focus on inner mental life. Novels, of course, explore the interior of their characters, their thoughts, intentions, motivations, desires, hopes, fears, angers, their emotions and cogitations; indeed, no fictional story can be told from outside the consciousness of one or more of its characters, and without alluding to any bits or streams of self-consciousness; novels invite and enable readers to share the conscious experiences and perspectives of at least some of their characters, to see the world as they do, to empathise with them, and therefore sympathise with their predicaments and choices. Judges too must try to comprehend the states-of-mind of the individual people involved in cases they hear, especially those being prosecuted; they must try to understand the perspectives, perceptions, motives and intentions of the persons on trial; they must exercise sufficient empathy to gain an adequate idea of the way these accused persons saw things, of the limits to their psychological capacities and resources, and of the pressures they were under; for the common law tradition requires judges to assess criminal culpability and appropriate penalties in the light of intention and deliberate choice, reasonable available alternatives, and degrees of malevolence.
Thirdly, there is the role of ‘judicious spectator’ (as Nussbaum, following Adam Smith in his The Theory of Moral Sentiments, puts it). While novels invite concerned readers into the perspectives of their major characters, and into sympathetic engagement on behalf of these characters, nevertheless they do not encourage readers to identify completely and uncritically with any of them. Novelists portray fictional individuals in the human garb of greater and lesser strengths and weaknesses of various kinds, and their novels construct the readership as ‘judicious spectators’, or in other words, sympathetically informed moral judges. Readers are enabled to make their own judgments about the imagined characters in novels, their moral failings and achievements, the ways in which they try to deal with obstacles to the realisation of human good in their lives, and the degrees to which social circumstances and constraints have made some forms of flourishing and virtue either possible or impossible for them. The reader as ‘judicious spectator’ does not judge from the standpoint of his or her own prejudices and biases but from the standpoint of human goods, particularly those that can be seen to figure and perhaps be frustrated in the lives of the novel’s characters. Judges in courtrooms, especially in the sentencing phases of trials, must similarly constitute themselves as ‘judicious spectators’ of the lives of others, attempting to see sympathetically what it was like to be the accused, dealing with the obstacles and pressures thrown up by their life situation, within the constraints of their concrete social circumstances. Judges should be neutral in the sense of exercising judgment free from personal prejudice, but not neutral in the sense of being detached and disengaged from a sympathetic understanding of the way things have been for the accused or the convicted. For they are required within our common law tradition to assess wrongdoing, and this cannot be done entirely from outside an apprehension of the sort of life suffered by the wrongdoer. Judges should be open to the same apprehension that concerned readers often have about the behaviour of fictional individuals — that anyone could have acted in a similar way in similar life circumstances.
Good judges, so Nussbaum suggests, are literary judges. In other words, if they perform their task well they will bring to it the capacities characteristic of literary imagination. For each person who comes before them is a unique story. Of course she does not maintain that judges can be as free in their judgments as novelists or readers. She acknowledges that judges are not legislators, so their use of imagination must be tethered to the constraints of statute and precedent. They also need to balance society’s interest in the deterrent role of punishment against the (common law traditional) ideal of punishments that are suitable or appropriate to the offender. Her claim is not that literary judging is sufficient for good judging but rather that it is in appropriate cases a necessary and valuable element of good judicial practice. The central thesis she argues is that ‘legal, and especially judicial, reasoning can be modelled on the reasoning of the concerned reader of a novel’. She elaborates: ‘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. Identifying with a wide range of characters from different social circumstances, and concerning oneself in each case with the entire complex history of their efforts, the reader comes to have emotions both sympathetic and participatory to the things they do and suffer. These emotions will be based on a highly particularised perception of the character’s situation. On the other hand, because the reader is not herself a character in the story … she will lack emotions relating to her own concrete placement in the situation with regard to which she is asked to judge; her judgments will thus, I argue, be both sympathetically emotional and, in the most appropriate sense, neutral’. So, then, for Nussbaum, judges are better judges if they are readers of novels, and bring to their job the resources of a literary imagination, seeing the human world not in terms of generalities and stereotypes but as a complex interweaving of individual stories requiring particularised attention.
It’s a further step, though, to the position that good judges will manifest a general inclination towards leniency, towards punishments that answer less than fully to the moral weight of an offence. On the face of it you would expect that literary judges who are sympathetically informed of the inside of each offender’s particular story will sometimes find reasons for leniency, but equally at other times reasons for harshness. Not entirely so, says Nussbaum. In ‘Equity and Mercy’ she takes the further step of arguing that the good judge, the literary judge, will show a general disposition towards mercy in punishment, and in the course of her discussion locates the reasons for such a disposition in a tradition of jurisprudential theorising going back to the Roman Stoic, Seneca, who claimed that ‘It is a fault to punish a fault in full’. Broadly, Seneca’s view is that most wrongdoing arises not from innate propensities but from circumstances, from the vicissitudes of the human condition as experienced by individuals living their particular life histories in particular social circumstances that mould and limit their psychological resources and capacities. The human condition is fraught with misfortune, accident, scarcity, and all manner of threats to individual development and wellbeing. Anyone — you or I — could easily have been born in circumstances, or thrown into situations, that are character-deforming, resolve-weakening and conducive to aggression and general maleficence. Seneca is no hard determinist; he believed that individual wrong action can be sufficiently free to be culpable, but also, crucially, that individual agents more often than not face such rough circumstances with such scant resources that the avoidance of wrong action is extremely difficult. A good judge will try to imagine what it has been like to be the offender, to have lived that particular history and to have faced its difficulties with the resources it provided. Once this imaginative exercise is undertaken, so Seneca maintained, the good judge will mostly find reasons for mildness in punishment, and for punishments that have some chance of improving the life of the offender.
Nussbaum goes on to say that our presently operative common law tradition is in part Senecan. The part that is distinctively Senecan is to do with sentencing and punishment. While the process of criminal trial up to the point of conviction and acquittal is focused on how and why a particular offence took place, the sentencing phase may involve a search for mitigating factors through a consideration of the life history of the offender, how they came to be the sort of person who committed the crime, and the extent to which their social circumstances and life situation presented virtually insuperable obstacles to good character development and action. When culpability is the issue, judicial reasoning focuses on the particular act in question, and what could have been expected of reasonable men and women of reasonably good character in the circumstances. But when punishment is the issue, judicial reasoning can properly encompass a particular consideration of the whole life-narrative of the offender, in order to see the extent to which fault lies in the cards life has dealt them rather than in their own life choices, and hence what reason the nature of their life provides for mitigation of punishment. In this exercise, of course, the capacities of a literary imagination are immensely helpful. Given the general nature of the human condition and of human beings the literary judge, so Nussbaum contends, will more often than not find reasons for leniency in punishment. They will exhibit, in the words of Seneca, ‘an inclination of the soul to mildness in exacting penalties.
Let me now try to draw together some threads specifically about sentencing and punishment. Generally speaking, moral and legal philosophers divide justificatory theories of punishment into two categories — utilitarian and retributivist. The most popular form of utilitarianism these days is called ‘preference utilitarianism’; it holds that acts are morally right if and only if they produce as consequences the greatest possible amount of preference or desire satisfactions compared with all available alternatives. Utilitarian justifications of punishment usually hinge on deterrence; punishment, as the infliction of some suffering or loss on those punished, is not seen as something good in itself, but rather as something justified by its wider consequence of deterring further unwanted anti-social behaviour. The main trouble with sole reliance on a utilitarian deterrence rationale, however, is that it leads straight to the justification of punishing the innocent. After all, if deterrence is the sole justificatory consideration, then there seems to be no reason why our legal system shouldn’t try to maximise it by engaging in collective punishment, punishing (say) the immediate families of offenders along with the offenders themselves. Those potential criminals not deterred by the prospect of punishment for themselves may nonetheless be deterred by the likelihood of their families getting caught up in the punishment net. The alternative traditional rationale, retributivism, does not have this difficulty, for it holds that punishments are justified to the extent that they impose on offenders their ‘just deserts’. So only the guilty can be rightly punished. According to the retributivist theory, deserved punishment is intrinsically right; it does not need any further justification other than that it is deserved. And just punishment must ‘fit’ the crime, in the sense of embodying proportionality to the seriousness of the offence, modified by the degree of the agent’s moral responsibility for it. The main trouble with this approach, though, is the implication that the deprivations inflicted by punishment, the badness it brings about for the person punished, is somehow intrinsically right, just so long as it takes the form of the return of bad for bad. How can two bad things magically combine into something good or right? Most reflective people are uneasy with the idea that retributive punishment is right in itself.
Because of the inadequacies of each of the traditional approaches most moral theorists now believe that an adequate theory of punishment cannot be confined within the limits of either but rather must incorporate elements from both. The most plausible contemporary theories along these combined lines hold that systems of criminal sanctions must have some general justifying aim beyond mere retribution — specifically, deterrence and the maintenance of social order under conditions that maximise individual freedom. To secure individual freedom, however, a retributive element is necessary. Punishments must be confined, under the rule of law, to the guilty, in proportion to the gravity of their offences, in order to ensure that the burden of punishment falls only on those who have freely chosen to risk it by making themselves responsible for criminal acts. According to these theories, then, although the general justification for criminal justice systems is utilitarian, particular punishments must be rationalised along retributivist lines, not for the sake of retribution itself, but for the sake of individual freedom. The determination of who should be punished and how much they should be punished, the business of the criminal courts, must conform to retributivist constraints.
The mercy tradition elaborated by Nussbaum, however, steps beyond the constraints of retributivism. In particular, it separates consideration of culpability from consideration of the degree or quantity of punishment, suggesting with Seneca that ‘it is a fault to punish a fault in full’. According to the Senecan strand in legal thinking and precedent, the sentencing phase of a trial is actually about leniency; it is a painstaking search for reasons for leniency, for mitigating factors, in the circumstances of the offender’s life, not just in the circumstances of the offence. Sentencing need not, and should not, be determined completely by retributive adequacy. In the Senecan scheme it is the determination of culpability or blameworthiness that is supposed to be retributively adequate; the level of conviction (whether, say, murder or manslaughter) should reflect the culpability of the offender for the crime, in terms of harm caused and moral responsibility. But the separation of blame from punishment gives judges the scope to search, in sentencing, for penalties that suit the offender rather than just the offence, and that are rehabilitative in effect rather than condign. For Nussbaum, of course, the resources of a literary imagination are helpful to judges in both these aspects of their role, although perhaps more so in the process of sentencing. And if sentencing is to be centred more on what to do about the offender than on retribution for the offence, as she argues it should be, the result will be a judicial disposition towards leniency. In other words, morally enlightened punishment is merciful and rehabilitative rather than retributive. Most contemporary moral and legal philosophers have been a little simple-minded in assuming that if retribution plays any role in just punishment it must determine appropriate penalties. Nussbaum has shown us that this is not necessarily so.
As for the Australian barbarism of mandatory prison sentences, it certainly runs counter to the traditions and forms of moral and legal reasoning Nussbaum has elaborated. It removes, within its compass, the possibility of sentencing that is suited to the particular life narratives of individual offenders; it banishes from the courtroom the values embodied in the mercy tradition. And these values are not merely arbitrary or conventional; they are long-standing and well-supported features of Western moral, legal and religious traditions. To the extent that community support for mandatory sentencing expresses resentment of judicial leniency, it amounts to a retreat from the high ground of our morality and culture.
There is one further point worth making about mandatory sentencing in the Australian context. As we’ve already noted, the impact of these laws is likely to be most severe on Aboriginal communities. Aboriginal Australians already suffer many adverse consequences from negative and racist stereotyping, and mandatory sentencing can only exacerbate this. However, the sort of legal reasoning Nussbaum has elaborated — reasoning in the Senecan tradition, informed by literary capacities — breaks away from reliance on stereotypes; it highlights the particular circumstances of individual lives and places them in the foreground of judicial consideration. Indigenous Australians need their individual stories to be heard, both in the courtrooms and in the wider community. Repealing the mandatory sentencing laws is one necessary step towards allowing their individual stories to be heard effectively in the courts of northern and western Australia.
[*] Rodney Allen is a visiting researcher, Department of Philosophy, Flinders University, South Australia.
 See Nussbaum, Martha C., Poetic Justice, Boston, Beacon Press, 1995; Nussbaum, Martha C., Sex and Social Justice, New York, Oxford University Press, 1999. Ch. 6, ‘Equity and Mercy’.
 Nussbaum, Martha C., ‘Equity and Mercy’, above, p.171.
 De Clementia, II, 7, fragment.
 Seneca, De Clementia II, 3.
 For articulations of theories along these lines, see eg Hart, H.L.A., ‘Prolegomena to a Theory of Punishment’ in his Punishment and Responsibility: Essays in the Philosophy of Law, Oxford, Clarendon Press, 1970; and Braithwaite J. and Pettit, P., Not Just Deserts: A Republican Theory of Criminal Justice, Oxford University Press, 1990.