The things that make a good Judge, or good Interpreter of the Laws, are, first, A right understanding of that principal Law of Nature called Equity; which depending not on the reading of other mens Writings, but on the goodness of a mans own natural Reason, and Meditation, is presumed to be in those most, that have had most leisure, and had the most inclination to meditate thereon. Secondly, Contempt of Unnecessary Riches, and Preferments. Thirdly, To be able in judgment to devest himself of all fear, anger, hatred, love, and compassion. Fourthly, and lastly, Patience to hear; diligent attention in hearing; and memory to retain, digest and apply what he hath heard.
– Thomas Hobbes, Leviathan, 1651
Judges are supposed to be impartial arbiters of justice. They weigh the merits of cases and decide punishments for convicted defendants. With these responsibilities comes power over criminal defendants’ lives. Yet because judges are human, their minds operate through similar cognitive processes as any other human mind. In practice, this means that their power is not always exercised impartially and may be subject to the same innocent, yet insidious, cognitive deficits and biases experienced by humanity at large.
To be a judge is, then, to be a human trying to relate facts to law while deciding cases and ambiguities in the most just manner. The case of judicial empathy in criminal sentencing is a particularly challenging issue, as it is an example of how human processing may affect another person’s rights and freedoms. Empathy allows judges to more fully understand the situations of the parties in front of them, but it also introduces empathetic bias into the judicial process.
Assessing empathy’s effects on judicial sentencing is important, as disparate empathy likely causes significant racial disparities within the criminal justice system. Disparate empathy against Black Americans may change trial outcomes and contribute to disparate levels of capital sentencing. It also contributes to longer prison sentences for Black Americans.
This paper investigates the role empathy plays in the judicial decision-making process, for better or worse. To do this, it first explores the judicial empathy debate and identifies what empathy is. It then explores connections between empathy, bias, and punishment, and relates these conclusions to judges and the sentencing process. Finally, it concludes with suggestions on how judges may improve their decision-making. Empathy is a near-universal human experience and judges can effectively regulate and employ it to positive ends, particularly when working within their wide sentencing discretion.