Sentencing: a role for empathy.

• Author: Chin, Denny

INTRODUCTION I. THE PROCESS II. SUBSTANTIVE CONSIDERATIONS III. EMOTION AND EMPATHY IN SENTENCING CONCLUSION INTRODUCTION

When Supreme Court Justice David H. Souter announced his retirement in 2009, President Barack Obama observed that "empathy"-which he defined as the quality of "understanding and identifying with people's hopes and struggles"--was an "essential ingredient" for a judge. (1)

The reaction from some was swift and caustic. Empathy, some said, was a code word for activism--for activist judges. (2) Indeed, Michael Steele, Chairman of the Republican National Committee at the time, was quoted as saying, "I don't need some judge sitting up there feeling bad for my opponent because of their life circumstances or their condition. And short changing me and my opportunity to get fair treatment under the law. Crazy nonsense empathetic. I'll give you empathy. Empathize right on your behind. Craziness." (3) After the President's remarks, some members of the Senate Judiciary Committee began asking judicial candidates about their views on the role empathy should play in a judge's consideration of a case, apparently to identify candidates who might let empathy creep into their decisionmaking. (4)

Is empathy an important trait for a judge? Is there a role for empathy in the law? What about the related concept of emotion? Is it correct that "[a] good judge should feel no emotions" and that "the ideal judge is divested 'of all fear[], anger, hatred, love, and compassion?'" (5)

Empathy, of course, should play no role in a judge's determination of what the law is. (6) Judges determine the law based on statutes, case law, and legal principles, guided by the rule of stare decisis. With statutory questions, we look to the plain wording of the governing statute (or sentencing guideline), and, where there is ambiguity, we apply the rules of statutory construction and seek to ascertain legislative intent. (7) We do not determine the law or decide cases based on "feelings" or emotions or whether we empathize with one side or the other. We instruct our juries that they "are not to be swayed by sympathy," (8) and we tell them that "once you let fear or prejudice[] or bias or sympathy interfere with your thinking there is a risk that you will not arrive at a true and just verdict." (9) These concepts apply to judges as well.

Nonetheless, there is a place within the law for empathy and emotion. In my view, empathy is an essential characteristic for a judge. (10) Despite the rhetoric, the reality is that empathy and emotion play an essential role in the real-world, day-to-day administration of justice-particularly in sentencing. (11) And we should be clear: by "empathy" I do not mean "sympathy." I do not mean feeling "bad" or "sorry" for someone and letting that emotion influence the decisionmaking. Rather, by empathy I mean the capacity to understand and appreciate the perspective of others, (12) whether that perspective is of individuals trying to "make a living or care for their families" (13) or corporations required to defend themselves against frivolous claims brought by vexatious litigants. (14) We were selected to be judges because of our experiences in life, and because of the wisdom, good judgment, and sense of justice that hopefully we have developed as a result of those experiences. It would make no sense for us to set aside these attributes once we reach the bench.

In this Essay, I will consider the role of empathy and emotion in sentencing. I do so from the perspective of someone who has sentenced hundreds of individuals. I was a trial judge for almost sixteen years, during which time I was assigned 699 criminal cases with 1256 defendants. (15) The vast majority were convicted--after a guilty plea or trial--and I was required to sentence them. (16) In doing so, I came to understand and appreciate the importance of empathy and emotion in sentencing. (17)

Sentencing involves both process and substance. First, a sentencing court must comply with all procedural requirements. (18) Second, the sentencing court must also impose a sentence that is substantively reasonable and falls "within the range of permissible decisions." (19) The sentencing judge must take certain substantive factors into account. A failure to do so will constitute procedural error (20) and may also lead to a sentence that is substantively unreasonable. Consideration of both the procedural and the substantive aspects of sentencing is important to determine the proper role, if any, of empathy and emotion in sentencing. Accordingly, first, I discuss the sentencing process; second, I discuss the substantive considerations that bear on the sentencing decision; and, third, I discuss the role of empathy and emotion in sentencing.

1. THE PROCESS

   A defendant is entitled to a sentencing process that meets the procedural requirements of law--including those set forth in section 3553 of the Sentencing Reform Act of 1984, (21) the Sentencing Guidelines, (22) and the Federal Rules of Criminal Procedure. (23) Compliance with these requirements helps to ensure a sentence that is both procedurally fair and substantively reasonable.

   The court is required to impose sentence "without unnecessary delay." (24) At the guilty plea or following a guilty verdict, the court will typically schedule sentencing approximately ninety days later. In most cases, the Probation Department will conduct a presentence investigation, (25) which will include an interview of the defendant. (26) The Probation Department will issue a presentence report (PSR) that will contain extensive information about the defendant, including his or her personal background (e.g., education, employment, financial information, and family history) and the details of the crime of conviction. It will contain a Guidelines analysis that calculates the offense level, criminal history category, and resulting sentencing range. (27)

   The Probation Department must disclose the draft PSR to the defendant, his or her attorney, and the government at least thirty-five days before sentencing. (28) The defendant has an opportunity to object to the Probation Department, (29) which must then consider the objections and submit a final PSR to the court at least seven days before sentencing. (30) After consulting with both defense counsel and the government, the Probation Department will typically recommend a specific sentence in the final PSR.

   The lawyers will also make written submissions, including sentencing memoranda--briefs addressing legal issues or advocating for a certain sentence, such as time served, a below-Guidelines sentence, or a within-Guidelines sentence. Defense counsel may also submit exhibits that provide information about the defendant, including medical records, psychiatric reports, and photographs of family members. Additionally, defense counsel will submit letters from the defendant, family members, (31) employers, and others in support of the defendant. These letters are important and can be effective. (32) The government will also, on occasion, submit letters from victims and victim impact statements, or documents that provide details of the crime. (33)

   At times, there may be factual disputes that can have a bearing on sentencing, such as the amount of loss in a fraud case (34) or whether a victim is a "vulnerable victim." (35) In these situations, the district court will conduct an evidentiary hearing--a Fatico hearing (36)--at which witnesses testify and counsel presents evidence. (37)

   Finally, there is the sentencing hearing, the culmination of the sentencing process. The defendant, defense counsel, and the government will be present. Often, the defendant's family and supporters will be there, and their presence is important as it is some indication that the defendant will return to a supportive environment. (38) On occasion, victims will attend as well. Of course, the proceedings are public, and members of the public--including representatives of the media--may also observe.

   The sequence may vary from courtroom to courtroom, but victims, defense counsel, the defendant, and the government all have a right to be heard. (39) In my experience, victims rarely exercised their right to address the court at the sentencing hearing. (40) Even though there were thousands of victims in the Madoff case, for example, only nine spoke at the sentencing. (41) When victims do speak, however, there is much emotion. (42) I remember vividly a murder case where the daughter of the victim spoke. She explained that her father had not been present for her graduation from high school, he was going to miss her attending college, and he would not be around when she got married and had children. Yet, she said to the defendant, "[E]ven after all that pain and anger that I have inside, even after being daddy's little girl, I forgive you.... I'm going to pray for you, because that's the way I was raised." (43)

   Defense counsel always speaks. In fact, after the Supreme Court held in United States v. Booker that the Sentencing Guidelines were advisory only, (44) I found that defense counsel talked longer at sentencings. This is a good thing in my view. The lawyers are trying harder because they know they now have a better chance of obtaining a below-guidelines sentence for their client. In fact, the role of a defense lawyer has changed somewhat since Booker. Before, when involved in plea-bargaining and sentencing, defense counsel was more of a tactician, trying to take advantage of the intricacies and technical aspects of the Guidelines. Although these matters are still important after Booker, defense counsel now has a greater opportunity to persuade a judge to impose a below-Guidelines sentence with eloquent oration--telling a compelling story that persuades the sentencing judge that the defendant is deserving of a lower sentence.

   Most defendants will take advantage of their opportunity to speak. Some defendants remain...