Sentencing: A Role for Empathy
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?’”
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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. The vast majority were convicted—after a guilty plea or trial—and I was required to sentence them. In doing so, I came to understand and appreciate the importance of empathy and emotion in sentencing.
Sentencing involves both process and substance. First, a sentencing court must comply with all procedural requirements. Second, the sentencing court must also impose a sentence that is substantively reasonable and falls “within the range of permissible decisions.” The sentencing judge must take certain substantive factors into account. A failure to do so will constitute procedural error 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.