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If You View Empathy as a Sign of Weakness, Think Again

When empathy is evenly distributed, justice and fairness follow.

Many people mistakenly equate “empathy” with somehow being easy, weak, soft, and other such things. However, that could not be further from the truth.

For example, there has been a great deal of public outrage of late by those who view sentences imposed on some individuals convicted of rape and sexual assault as being “far too light.”

One such example occurred in October, when Montana District Judge John McKeon “imposed a 60-day jail sentence plus probation on a Montana man who repeatedly raped his 12-year-old daughter, which led to public outrage.” The petition calling impeachment of the judge says, “No one spoke on behalf of the 12-year-old child at trial." Meanwhile, Judge McKeon contends that it was “a just and proper decision.”

Critics, on the other hand, believe that “the decision represented a breakdown in the [justice] system.” In other words, injustice had been served.

Although this particular incident occurred in Valley County, Montana, it’s worth noting that in 2014, the U.S. Justice Department saw “likely gender bias in a failure by the Missoula, Mont., County Attorney’s office to prosecute nonstranger rapes….

In a letter to Missoula County Attorney Fred Van Valkenburg, the Justice Department says its investigation found that his office declined to prosecute ‘nearly every case’ involving nonstranger assaults on adult women who were intoxicated, or on adult women with a mental or physical disability….

There are ‘strong indications’ that the charging decisions in such cases are influenced by gender bias and gender stereotyping, the letter says. ‘Women consistently told us that deputy county attorneys treated them with indifference or disrespect, and frequently made statements to women victims, advocates and the public diminishing the seriousness of sexual violence and minimizing the culpability of those who commit it,’ the letter said. According to the letter, the prosecutor’s office declined to prosecute some nonstranger sexual assaults even when it had a confession.”

While the source and impact of the bias may differ, the resulting injustice is the same.

In the statement, as well as in his judgment, McKeon wrote that longtime sex offender treatment specialist Michael Sullivan recommended community based treatment on grounds the man was at low risk to repeat his crime, according to CNN affiliate KTVQ.”

Interestingly enough, in 2013, there was similar outrage when Billings, Montana District Judge G. Todd Baugh handed down a 30-day sentence “to a teacher who admitted to raping his 14-year-old student. The girl later took her own life….Baugh has defended his ruling. He told CNN he believes Rambold is ‘treatable’ and a ‘low risk to re-offend.’”

In 2014, Dallas County, Texas State District Judge Jeanine Howard sentenced a man who admitted to raping a 14-year-old girl to “45 days in jail as a condition of [five years' probation]. Judge Howard also altered the probation requirements, such that Sir Young “does not have to stay away from children, attend sex offender treatment, undergo a sex offender evaluation or refrain from watching pornography. While not required by law, these are typical probation requirements for rapists that are intended to prevent future victims and rehabilitate offenders.”

Judge Howard “thought she was ‘doing a good thing’ with her sentence [and commented], ‘My job is not to make people happy. My job is to follow the Constitution and do the right thing. I will always do the right thing.’ If Young complies with the terms of his five-year probation, he will not have a criminal conviction on his record. Howard also initially ordered Young to do 250 hours of community service at a rape crisis center. But the Dallas Area Rape Crisis Center does not want him to complete his hours there.”

In 2015, California Superior Court Judge M. Marc Kelly "sparked national outrage in April when he cut 15 years off a minimum sentence for Kevin Jonas Rojano-Nieto, who was convicted in December of sodomizing a 3-year-old child. The crime carried a mandatory sentence of 25 years to life in prison, but the judge determined the punishment in the case was unconstitutional and reduced the sentence to 10 years in prison....

While the crime was 'serious and despicable,' the judge said in his analysis, it does not compare to a situation where a pedophile preys on an innocent child. The judge said there was no 'violence or callous disregard' for the victim’s well-being....In a statement filed with the Registrar of Voters in May, Kelly called the recall effort an attack on judicial independence and said he 'took an oath to uphold the Constitution, not appease politicians.'

Earlier this year, Judge Aaron Persky sentenced former Stanford University student Brock Turner to six months in jail, after he was convicted of sexually assaulting a woman. Turner was released on account of “good behavior” after serving only three months in jail.

Judge Persky said, “A prison sentence would have a severe impact on him. I think he will not be a danger to others.” Coincidentally, while Turner was a star athlete on the Stanford swim team, Persky had been the Captain of the Lacrosse Team at Stanford.

Following public outrage from what many considered a far too light sentence imposed on Turner by Judge Persky, California Governor Jerry Brown signed into law Assembly Bill 2888. “Under Assembly Bill 2888, courts would not be allowed to grant probation to people convicted in a rape or sexual assault involving a victim who was unconscious — or was too intoxicated to give his or her consent. The measure emerged in the wake of the Turner case, in which an unconscious woman was sexually assaulted outside a fraternity house in January 2015.”

However, consider the following excerpt from an article by Mica Doctoroff titled "Brock Turner law won't limit sentencing discretion, it will shift it" that was published in the September 14, 2016 edition of the Los Angeles Daily Journal:

"Assembly Bill 2888, authored by Assembly members Evan Low and Bill Dodd, was a last-minute legislative proposal introduced in reaction to the sentence Brock Turner received in the now-infamous Santa Clara County case from earlier this year. The public's outrage over that case is understandable. But AB 2888 is not the answer to that outrage. Brock Turner will not go to prison because of AB 2888, as the Legislature cannot change his sentence. Future sexual assaults will not be prevented as a result of AB 2888, as mandatory minimums do nothing to deter future crime....

Ironically, many proponents of mandatory minimums believe such policies actually result in a fairer, less-biased criminal justice system. Yet these policies have had just the opposite effect....

The problem is this: Bills like AB 2888 do not actually limit discretion in sentencing. Instead, these bills shift sentencing discretion from the judge to the prosecutor, where bias and prosecutorial discretion often remain unchecked. The prosecutor decides what charges to bring, and, in turn, what the sentencing range will be. If the prosecutor thinks someone should not go to prison, then he or she will offer a plea bargain and change the charge to something that allows a non-prison sentence....

What's more, prosecutors use mandatory minimum sentences to leverage plea deals. Faced with the risk of losing at trial and receiving a mandatory minimum sentence, people accused of a crime are much more likely to plead guilty and waive their rights to a jury trial. This includes innocent people and poor people who do not have the money to hire powerful lawyers and who often cannot afford to bail out of jail while they await trial. Because people of color are policed and arrested at much higher rates than white people, they are disproportionately subjected to the negative consequences of the plea system, and are therefore convicted and sentenced at much higher rates as well. Bills like AB 2888 do not eliminate bias and discretion in sentencing. They simply shift power from the judge to the prosecutor."

On October 24, 2016, the Los Angeles Daily Journal published an article by America Hernandez on the same topic titled "Chief justice calls for rapid response to attacks on judges." That article stated in part as follows:

"The California Judges Association put out a press release underscoring the importance of an independent judiciary, and noting litigants have the right to appeal....

State Sen. Hannah-Beth Jackson said that lawmakers favor judicial discretion but want to narrow chances for bias. She said that led to a new law mandating minimum prison sentences for sexual assault on intoxicated victims.

Ventura criminal defender Danielle L. De Smeth, who governs the local California Women Lawyers district, shared her organization's experience drafting an open letter to the Judicial Council regarding the Persky case.

'The consensus on what we thought could have prevented the situation was perhaps better training of the judiciary in matters of sexual assault and domestic violence, because regardless of whether or not it was the appropriate sentence, the way in which the sentence was phrased alienated people who have been subject to those types of crimes,' De Smeth said.

'That did spark a debate,' the chief justice said. 'We're one of the few states that has implicit bias training for our judges, as well as ethics training and sexual harassment training, but we could always do better, so I have talked with some people about implementing another component focused on sensitivity to victims of sexual assault.'"

In other words, injustice occurs as a result of judicial bias and therefore the answer lies in reducing judicial bias, not in limiting prosecutorial and judicial discretion.

Since the California Judges Association pointed out that "litigants have the right to appeal", limitations in that regard bear mentioning. Whenever facts are in dispute before a court, there is typically evidence presented on both sides. Therefore, whatever decision a court makes is based upon the evidence. Otherwise, the decision would be easily reversed on appeal for having reached a factual decision with no basis in evidence at all. However, as long as there was some basis in the record from which the judge made the incorrect factual finding(s), they cannot be overturned on appeal. The question on appeal then becomes whether or not the law was properly applied to the facts as found by the trial court.

For a bit of perspective in that regard, approximately every two and one-half days, one person wrongfully convicted of a crime is found to have been factually innocent, after serving an average of fourteen years in prison. For someone to be convicted of a crime, they must have been found guilty beyond a reasonable doubt. In non-criminal matters, the burden of proof is by a preponderance of the evidence. "This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence."' This essentially means "it is more likely than not." A belief that there is a 50.01 percent likelihood that something occurred, it is "more likely than not."

Query: Considering the number of people convicted of crimes they didn't commit, what is the likelihood that judges or juries make incorrect factual findings in civil cases?

It bears mentioning that "justice" doesn't occur when the law is properly applied to incorrect facts. Keep in mind that each judge has their own personal biases, beliefs, assumptions and values, which impact their credibility determinations, factual findings, exercise of judicial discretion, and application and interpretation of the law.

In his book Mediating Dangerously - The Frontiers of Conflict Resolution, Kenneth Cloke made the following statement regarding bias:

"[T]here is no such thing as genuine neutrality when it comes to conflict. Everyone has had conflict experiences that have shifted his or her perceptions, attitudes, and expectations, and it is precisely these experiences that give us the ability to empathize with the experiences of others. Nor are there any genuine neutrals in courts, including judges, CEO's, managers, and human resources representatives, all of whom have biases and points of view, including the bias of wanting to protect the organization from being disrupted by conflict. Judges have the most intractable bias of all: the bias of believing they are without bias." [emphasis added]

As Thomas B. Colby wrote in his article In Defense of Judicial Empathy:

A call for empathy in judging is not a call to decide cases on the basis of sympathy, or anything else other than law….

"A call for empathy in judging is instead a claim that judges need more than just smarts, experience, expertise, and impartiality….

"Because of the nature of both law application and lawmaking in our judicial system, in order to successfully traverse that last mile—to definitively and fairly strike the close balance—judges also need an ability to understand the issue from the perspective of all of the parties, and to fully comprehend and appreciate the implications and impact of their rulings on all parties (and nonparties). They need a talent for empathy….

"Given that some people are naturally better at it than others, we should seek judges who have evinced a proclivity for empathy, just as we want judges who have proven themselves to be intelligent. And given that people apparently can improve their empathic skills, we should seek judges who have expressed an interest in, and a commitment to, empathy….

"Empathic judging is not liberal judging; it is good judging….

"Empathic judges do not exceed their role as part of the judicial branch, and they do not improperly take nonlegal factors into consideration. They simply use empathy to ascertain and make sense of the relevant facts and to apply the relevant legal factors—thus fulfilling, rather than abdicating, their role within the judicial branch….

"Empathy is not an obstacle to judicial neutrality; it is a requirement of judicial neutrality. Thus, we want judges who are capable of empathy and who seek to engage in it. After all, a judge who cannot or will not empathize well is at a great disadvantage. How can she effectively apply (or craft) legal tests if she lacks the ability to accurately assign value to the relevant variables in the legal calculus? If 'Lady Justice doesn’t have empathy for anyone,' then she is a lousy judge."

Perspective is important and perspective-taking is the core of empathy. Further, empathy is an amazing form of bias reduction and in keeping your biases in check.

Consider the following excerpt from Jill Suttie's article Do We Need More Empathic Judges?:

"'Research has shown that we tend to empathize with people that are similar to us—it is easier to tune in to someone or something that we recognize,' says Stina Bergman Blix, who has studied court proceedings in Sweden and found that judges can fall prey to emotional reactivity toward other players in the courtroom, responding with condescension, and impatience when bored or angry. 'If judges do not reflect about their empathic behavior they risk being biased by spontaneously tuning in to one side but not the other.'

Indeed, some studies support the assertion. Results from one study suggests judges are subject to the same implicit racial biases that many Americans carry, though the researchers also noted that judges could compensate for the biases’ influence on their judging if they were motivated to pay closer attention to them....

These studies suggest that widening a judge’s perspective can lead to different decisions, perhaps leading to fairer judgments. It also suggests that those who don’t recognize their biases may end up ruling in a less-fair manner, perhaps even being more lenient or more punitive, depending on who’s before them....

Studies like these suggest that empathy already plays a role in how cases are decided, at least in discrimination cases, and that having a life experiences similar to plaintiffs or defendants affects a judge’s decision without their conscious awareness. They also imply that unless a judge can empathize with those who are different from them, they will continue to make decisions that are unfair and perhaps lead to over-punitive sentences....

Though these studies were not done with judges, the findings could still have important implications for the judiciary: If a judge isn’t conscious of how little they empathize with another from a different social group, they may be more likely to hand out harsher punishments.

But the reverse is true, too: Cultivating empathy could lead kinder and gentler sentencing.

Adam Benforado, a law professor and author of the 2015 book, Unfair, has been training judges from all over the country on how bias shapes criminal proceeding and hoping to make an impact in how they see their work. He believes that many judges get into the profession because they genuinely care about people and want to do the right thing; but they don’t understand how bias impacts them personally.

Benforado argues that something similar should be done in the legal profession, starting with law school, so that future lawyers and judges will understand the importance of empathy and the role of emotion in the courtroom. Only by doing that, he argues, will we have better, fairer outcomes for all. From this perspective, the solution to Aaron Persky’s sentence for the Stanford rapist is not less empathy—but rather, more of it for the female victim."

I couldn't agree more with Benforado, which is why on August 27, 2015, I published an article titled Future Lawyers Should Be Screened and Trained for Empathy.

I'm afraid that the outrage has to do with a lack of judicial empathy and nothing more. If the public wants such things not to occur in the future, they should be insisting that only those with “the cognitive skill of perspective taking—the ability to see a situation from someone else’s perspective—combined with the emotional capacity to understand and feel that person’s emotions in that situation” be elected or appointed to the bench.

Considering that the injustice caused by sentences that are either overly harsh or too lenient and other such things is frequently the result of judicial bias and considering that empathy is an amazing form of bias reduction, does being empathetic make one easy, weak, soft and other such things?

As Stina Bergman Blix said, "many judges aren’t always aware of the importance of empathy, in part because the court’s rituals and the norms of behavior tend to make judges believe they are not affected by their emotions or concerns for others. Some may see empathy as a weakness."

Unless justice and fairness are signs of weakness, people's perceptions of empathy as such could not be more wrong.

As Psychology Today commented, when it Tweeted my article Beware of Criticizing Concepts You Don't Fully Understand, "Empathy is often misunderstood, yet it's one of the most important skills you can practice." After reading that same article, Louie B. Free Tweeted, "This is a really important article" and said, "I'd love to have you on BrainFood from the Heartland - re empathy article." I took him up on his offer and he interviewed me on the topic of empathy on his radio program for approximately one hour. We discussed a great many things, including the importance of judicial empathy.

Never underestimate the power of empathy, which is why I could not be more thrilled that my overall blog column in Psychology Today is titled Empathy and Relationships: Fostering Genuine Open-Mindedness.

More from Mark B. Baer, Esq.
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