By D. Pontoppidan, Summer Fellow at the Mackinac Center*
Over at Cafe Hayek I stumbled on a letter to the editor in the Baltimore Sun from one Diane Schaub. She argues correctly that judges should not let their emotions cloud their judgment (“Why empathy is the enemy of justice,” June 14), but she is incorrect in asserting that impartiality and empathy are mutually exclusive in a court of law. On the contrary, in my own cases, I find there’s an important human factor in justice that we mustn’t forget. Empathy has a central role to play in measuring out the sentence, just as a judge who has knowledge of what it means to be disenfranchised or marginalized from society, or has experienced being the victim of a crime, can better understand testimony relating to such experiences (of which there is plenty in the criminal courts systems!). Applying such experience to one’s assessment of a case is only a strength.
Of course, judges should always be impartial, a process they undergo through applying culturally coded, ideological standards to manage their feelings and produce acceptable displays, e.g. by wearing robes and adhering to certain rules and practices. But should we really run away from that which makes us human in a court of law? The question is interesting and would certainly be excellent for a Philip K. Dick novel . Imagine we could calculate the optimum penalty for a crime through an econometric model. Would we then rather have computers presiding over cases in the future? I certainly wouldn’t.
* The author is a politically appointed lay judge to the District Court of Copenhagen, Denmark, and finishing an MA in Sociology.