Murphy work selected for criminal law project

07/24/2008

Murphy work selected for criminal law project

Jeffrie Murphy(2)

Jeffrie Murphy
     Professor Jeffrie G. Murphy is among leading scholars who have been invited to debate the fundamental questions of modern criminal law for a project at the University of Pennsylvania Law School.
     Murphy’s essay, “Remorse, Apology, and Mercy,” was nominated by Susan Bandes, a Distinguished Research Professor at DePaul University College of Law and a Visiting Professor at The University of Chicago Law School, for inclusion in the Criminal Law Conversations project. In recent months, it received five comments from other scholars in the field, and thus moved from the nomination phase into the selection stage.
     “I am pleased that so many people are engaged by my article enough to want to comment on it,” said Murphy, Regents' Professor of Law, Philosophy & Religious Studies at the College of Law.
     The interest in Murphy’s piece is significant because, while 112 nominations have been made to date, only 26 have attracted four or more commentators, the required minimum for acceptance. An author whose work has been accepted is then required to provide a 5000-word Core Text that summarizes the essence of the original article.
     The series of “conversations” was initiated by three eminent criminal law scholars, Paul H. Robinson, Colin S. Diver Professor of Law at the University of Pennsylvania Law School, Professor Kimberly Kessler Ferzan, Associate Dean for Academic Affairs and co-director of the Institute for Law and Philosophy at Rutgers University, School of Law – Camden, and Professor Stephen P. Garvey, Associate Dean for Academic Affairs at Cornell University Law School.
     The plan is to generate a series of exchanges centering on significant questions in criminal law theory. Eventually, the most dynamic and interesting exchanges will be published by Oxford University Press in a volume of “conversations” about hot-button criminal law issues.
     In a June 20 article published in The Chronicle of Higher Education, Christopher Collins, an Oxford editor, called the experiment “American Idol meets peer review and 2.0 publishing,” because it has created an interactive alternative to traditional scholarly publishing. The more than 130 scholars who signed on to the project are judging which essays are the most provocative and compelling and which should be “booted off the stage.”
     Murphy’s essay, which originally was published in the Ohio State Journal of Criminal Law (Spring 2007), explores the nature of remorse and apology and the role that these might play in decisions to grant legal mercy, either at the time of sentencing or consideration of clemency.
     “I apologize,” “excuse me,” and other “mere verbal formulae,” Murphy writes, are generally adequate for small wrongs, because they exist only to preserve civility and good manners.
     “What works for small wrongs is likely to be quite unacceptable for wrongs of greater magnitude, however,” he writes. “Here we normally expect such things as repentance, remorse, and atonement; and we are interested in apologies only to the degree that we believe that they are sincere external signs of repentance and remorse and reliable external signs of future atonement.”
     But apology is quite different from remorse, an internal mental state, and repentance, an internal mental act, according to Murphy, who defines apology as, in some cases, nothing more than a public performance, and at other times, an act that leads listeners to believe remorse and repentance are present.
     “A truly sincere apology can be a wonderful, even blessed, thing since it involves the kind of remorse and repentance that often marks a step on the road to moral rebirth, can sometimes provide legitimate comfort to victims, and in the proper sort of cases can indeed lead to a valuable kind of reconciliation,” he writes.
     Murphy expresses concern, however, about what he calls America’s “culture of apology,” in which apologies are so frequently offered simply to get out of trouble that cynicism about apology has become widespread. This pervasive cynicism is likely to undercut much of the value that apologies might otherwise have in law, he says.
     “Turn all of this over to the American system of assembly line justice, however, a system starved for resources and staffed by people who are oppressively overworked and in a hurry to clear cases, and we will, I fear, do little more than cheapen the currency of the real thing and add to the cynicism about our system of criminal law, and indeed about our society in general, that grows greater each passing day,” according to Murphy.
     He argues that we should be particularly skeptical about letting apologies or other expressions of remorse play a significant role at the time of sentencing, but he sees some limited value in their use in clemency decisions because, by then, enough time has generally passed to allow more reliable estimates of sincerity.
     In addition to providing one of the Core Texts that will be an object of commentary, Murphy, along with two colleagues at the College of Law, Professors Carissa Byrne Hessick and Mary Sigler, will provide comments on some of the other selected Core Texts that will be a part of the project.
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