68 | SEPTEMBER 2 • 2021 

OUR COMMUNITY

are either consequentialist 
(deterrence, reform or inca-
pacitation) or retributivist 
(focused on giving the offend-
er what he deserves).
The paradox arises primar-
ily for retributivist notions of 
justice. A consequentialist, I 
think, does not even have to 
admit that anyone deserves 
punishment; the punishment 
merely has to deter other 
potential offenders, or take 
this offender out of circulation 
or serve some other beneficial 
end. For a retributivist, the 
offender truly deserves her 
punishment. Withholding 
the punishment amounts to 
injustice.
Dolinko observes, though, 
that justice does not mean 
the same punishment for the 
same crime. A nearly infinite 
number of circumstances can 
go into calibrating a just pun-
ishment. Perhaps the offender 
has boasted of the crime, 
shown no remorse or taunted 
the victim after the crime. Or, 
perhaps, the offender suffered 
an abusive upbringing, or was 
coerced into participating in 
the crime, or cooperated with 
law enforcement after the 
crime or shown remorse.
If the judge finds more of 
these mitigating factors rel-
evant to sentencing, then we 
could call the judge merciful. 
However, Dolinko argues, 
those mitigating factors them-
selves — if relevant — are not 
separate from justice. “Rather, 
the merciful judge, like one 
who does not show mercy, 
imposes on the defendant the 
sentence the judge believes he 
deserves, given the relevant 
circumstances — but takes 
a more expansive view than 
her hardline colleague as to 
precisely what those circum-
stances are.
”

Theoretically, justice 
requires “the same punish-
ment for the same crime.
” In 
practice, each crime has its 
unique aspects. Judges may 
reasonably differ about which 
factors have relevance, but that 
disparity does not seem unjust 
to Dolinko. Unfair, and unjust 
disparities come when judges 
take into account invidious 
factors, such as race, religion, 
sex or personal animus.

JUDAIC RELEVANCE
Dolinko applies his analysis 
to criminal law as enforced in 
the courts. It seems to me that 
the analysis has relevance to 
theology. When we envision 
God as a Judge, the Supreme 
Judge, we may not need to see 
God exercising incompatible 
Divine attributes, sometimes 
judging the world with merci-
less justice and at other times 
with unjust mercy, sometimes 
sitting on one throne and 
sometimes on another. Rather 
we can envision God simul-
taneously understanding all 
our failures — and all the mit-
igating circumstances of our 
failures.
Dolinko finishes his “Naïve 
Thoughts” with the obser-
vation that “… I make no 
pretense of having ‘solved’ 
(nor ‘dissolved’) any issue. I 
have tried only to propose a 
different way of looking at the 
problem, hoping it may con-
tribute in some small way to 
the ongoing discussion.
”
May his memory be a bless-
ing. 

Louis Finkelman teaches literature 

and writing at Lawrence Technological 

University in Southfield. He serves 

as half of the rabbinic team at 

Congregation Or Chadash in Oak Park. 

This essay first appeared in the Times 

of Israel.

continued from page 66

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