The following text was spoken by Daniel Mirauta, judge of a Court of Appeals in Romania, at COPE’s Annual Network Meeting in Limerick, June 2023.
My name is Daniel Mirauta. I am a judge in Romania, in a Court of Appeals. I judge mainly criminal appeals and my judgments are enforceable and final, so they come with a great deal of responsibility and, not rarely, with concern about the fate of the criminal and his family.
It is the second time that I am attending a COPE event. I attended another one last year in Krakow and there, for the first time, I heard of a concept that I had no idea existed: the concept of Compassionate Justice. I fell immediately in love with this concept, because although I had never heard anyone speak of it, I had always seen the people I judged—whether victims or defendants—as humans who need both justice and compassion, in different forms.
I thought that it was sad that someone who had been a judge for fifteen years had never heard that there was a professional concern for dispensing justice with compassion. I understood that COPE’s work for children with an imprisoned parent is an expression of this concept of compassionate justice. I realised that there is some kind of resistance and reluctance to this concept of compassionate sentencing, and after many talks on this subject, I have even begun to question whether compassion is perceived as a virtue, or rather as a weakness.
I also realised that maybe in Romania, after the communist regime and after some decades where we had problems with corruption, there is still this thirst for justice, for punitive justice to be more precise. And therefore, any form of compassion in this process may be perceived as injustice or as immoral. So in a sense, in Romania it may be too early to preach about compassion in the justice system. I saw that even where compassion is present, for example in churches, families and charities, there is often resistance to showing compassion towards those with convictions. This the kind of objection that is frequently heard: punishment is about suffering, about deprivation of rights, including separation from one’s family.
While it may be obvious for some judges/people to accept that justice and compassion can stand together, for others it may not —and for a number of reasons that may appear to be legitimate. What exactly are the arguments for compassionate sentencing? What is the foundation for it? How can we deal with some important objections? First of all, I tried to define for myself what compassionate sentencing is and what it is not, as I have understood it. Compassionate sentencing is not pathetic indulgence to the criminal. It is not moderate justice or lesser justice. It is not about the criminal getting away easily. It is rather about the judge taking the time, the effort, the creativity to tailor the penalty in such a way that the judge also ensures the protection of society, gives satisfaction to the victim, discourages others from committing the same crimes, constrains the criminal to change their behaviour and set of values, yet also ensures that the criminal is not annihilated as a person but that their life still goes on in other respects, including the bonds with his or her children. Such sentencing can require a great deal of balancing, like tightrope dancing.
Why should compassionate sentencing be looked upon as essential? Because justice is a deeply humanistic process, and compassion is part of our human nature. We believe that compassion is formative and that, when treated with grace and mercy, a guilty conscience will be motivated to change, sometimes to even a greater degree than it will be by punishment. Surprisingly, punishment actually decreases the sense of guilt, in the sense that the criminal will think he has paid for the crime, he is even with the victim, and he no longer owes anything to society.
Compassionate sentencing testifies that we understand that people are more than their actions, that sometimes their actions do not represent them but have been committed under strong situational pressures. We must not validate a simplistic distinction between good people and bad people, but rather forge a more complex understanding of why people behave in a certain way.
Unfortunately, justice risks becoming a thin pragmatic concept, whose efficiency is only evaluated in terms of public interest, requiring the exclusion of the criminal. Justice is therefore confined only to technical considerations of laws and is deprived of its very essential humanistic dimension. The legal philosopher Andrew Brien remarked: “There is no real justice without mercy, and judges, in exercising discretional power, are morally obligated to mercy.” We should return to a more robust meaning of justice, where justice signifies more than punishment. It means power used wisely by the judge, it means daring to believe that compassion manifested for the right person, in the right form, at the right time, can trigger change and healing, more than a severe penalty can.
I think it is time that we understood the principle Fiat Justitia pereat mundus! — Let justice be done even if the world has to perish! in a different way. Who profits from this view of justice if the world perishes? I had a case a few years ago involving two parents sentenced to years of imprisonment for smuggling. It was a serious crime because it was a network of criminals and there were huge quantities involved and clandestine production. But these two parents had a child who was receiving cancer treatment and had to go abroad every few months for treatment.
I realised that if I confirmed the penalty of the first instance and both parents went to prison for a couple of years, the chances that the child would be able to continue the treatment would be minimum. I also saw the despair of the parents who were afraid for the life and the fate of their child if they went to prison. Normally the penalty the law prescribed for that crime would not be eligible for a suspension unless there were mitigating circumstances; but those were hard to find. Needless to say, somehow I had to be creative in interpreting the law and suspend the penalty for the mother, because I thought that the interest of this child, in this case, was superior and more urgent than the general interest of the society to have an execution of the penalty.
That was somehow a fortunate case, but there are still situations in Romania where the judge does not have the discretion to suspend the execution of a penalty even if it may be obvious that the imprisonment would not be necessary. I think judges should be once again be given the discretion to evaluate the necessity of each incarceration rather than attach it to the abstract and impersonal evaluation of the law in consideration of the offence. Although it is legitimate to prevent any abuse of leniency from the judge in serious cases, the practice has proved that the mandatory incarceration only in consideration of the seriousness of the abstract crime without any possibility of the judge to appreciate over it, can result in disproportioned and useless punishment.
Remaining blind to the consequences of a penalty, justice is not impartial and objective but inhumane. Striking blindfolded with a sword over the life of a guilty person, justice may also harm innocents. Compassionate sentencing is taking off the blindfold and surgically removing the evil while preserving the good parts.