I think for the most part we all wish our judicial system took the human element more into consideration. However, I do not think that empathy in our court proceedings would necessarily be the best practice. Even with this apparent absence of empathy we see great disparities in how minorities are treated and how a cases' outcome can be influenced by what judge it is assigned to. Speaking with various people at my internship (Esperanza), visiting Brooklyn's family court (where juvenile cases are handled), and listening to Mr. Thomas Giovanni, I have learned of the huge amount of influence that judges wield in respects to sentencing and even as to how a trial is run. I have seen judges uphold every single objection raised by the prosecuting attorney, while the defense is rushed through their case and barely allowed to do their job. I have also seen thinly veiled racism and various off-color comments from judges that truly left a bad taste in my mouth.
Thomas Giovanni's anecdote regarding the young Irish man really stuck with me since our court tour. To sum it all up, a young white, Irish man takes a cab on St. Patrick's Day and for some reason snaps at the cab-driver who he winds up assaulting while hurling racial slurs his way. This is plainly assault and most likely a hate crime. In court, the judge sees that he comes from a pedigree of NYPD officers, tells him that from his upbringing he can see that he has great potential for good and wont sentence him to the prison term that he should get. I believe Thomas Giovanni said the young man wound up with one year of probation. Had he been "black,brown, or poor" the judge would've thrown the proverbial book at him. In this case, the judge saw past the crime and liked what he saw (white, family in law enforcement), made an assumption as to his upbringing, and cut him a break. To me this is an example of how a judge would misuse empathy if empathy was expected in our judicial system. Would a "minority" individual have gotten this break? I doubt it. Judges already exert a large degree of control over the fate of every single person that steps into his or her courtroom. Whether they choose to be empathic or not is their choice as we can see in Thomas Giovanni's anecdote.
Empathy can be, and i guarantee would be, distributed in a biased manner. We call for empathy from the very same judges we view as racist, time-constrained, and despotic. This just doesn't make any sense to me.
I think, as I mentioned in class, that empathy should come after sentencing. I do not plan to delineate exactly how our justice system should be run as i am neither well-versed in law (yet) nor delusional but maybe some policy changes or prison reform could make up for our judges' poor and biased judgments. Maybe a judge's job should be to interpret law as absolutely black and white. If you commit a particular crime, you should serve a certain prison or probation term. However, a committee of sorts, such as a jury of one's peers, could decide what happens to the individual as he or she enters the prison system or probation.
For example: Person A and Person B are both convicted for armed robbery which, lets say for now, carries a two year prison term. Person A is robbing to support a drug habit meanwhile Person B cannot find steady, meaningful employment due to not having any semblance of an education and crime is the only way he or she knows how to make some money. Person A should be sent into a rehabilitation program and then made to complete a drug education course while spending his or her sentence in a controlled, yet healthy environment. Person B meanwhile could be placed in various job training courses (not unlike CEO or WILDCAT) and made to obtain a GED or some vocational training also in a controlled environment (not necessarily a prison as we think of it today) as part of their sentence. Both individuals would, potentially and ideally, leave "prison" having gained something and can begin to piece their lives together. By addressing the circumstances and the motivations for the crime and giving the "criminal" the tools and knowledge to rise above those circumstances, their reasons for committing that particular crime would be eliminated. Their fates did not hang on the words, decisions, biases, or empathy of a single person. This is simply too much power to grant an individual. Also, it doesn't make sense to send both Person A and Person B to the same prison environment, specially under the prison system we currently have.
Simplifying a judge's job this way would leave little to no room for any bias, simplify his or her job, and possibly move the process along quicker. All by eliminating empathy, as it exists today, from court proceedings.
I am fully aware that the system I employed in my example is overly simple but I was just attempting to formulate a clear thought experiment to make my case that empathy does currently exist in the judicial system, is misused (bias), and that to demand it from judges is folly and will only lead to even further inequality and lack of consistency in the law. The key to bettering our judicial system, I think, is to interpret the law as black and white while humanizing how we deal with those we do convict. This is where, in my opinion, empathy would make all the difference.
But then again, what do I know? After reading this post over, i sound a little naive.
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19 comments:
Manny, your thoughtful post articulates so well our struggle with the concept of judicial discretion in sentencing. You offer an anecdote of two offenders, and don’t recommend prison for either. You have moved “beyond the prison paradigm” as my favorite psychiatrist/ researcher/ author, James Gilligan-the former Director of Bridgewater State Hospital for the Criminally Insane, does when writing of his hope for an ”anti-prison” movement, which seeks to replace prisons with secure treatment and education facilities. His research over thirty years has demonstrated that such programs can actually reduce recidivism so much that they pay for themselves many times over, while regular prisons fulfill none of their stated purposes regarding violence prevention and, indeed, greatly exacerbate the problem. If people don’t like the word empathy, because it brings to mind an image of over-permissiveness, let’s change the rhetoric to that of the pragmatist: these kinds of anti-prisons save money as well as lives. Gilligan suggests that a human development model replace prisons, which are so “fundamentally flawed that they cannot be reformed.” And Professor Reitz will even be happy that Gilligan quotes Nathaniel Hawthorne’s The Scarlett Letter, calling prisons “the dark flowers of civilization”, coming really at the birth of modern civilization, right after we transitioned from hunter/gatherer societies. All those prisons and nothing to show for them. Aren’t we ready for a paradigm shift?
I’m ready! When traveling there times we all head down the wrong road. Although tough every so often were able to make a u-turn but, more often than not were forced to wait for the nearest intersection. Life in its self is a journey. It seems the flaw in our criminal justice system, implicit in Manny’s blog is that so often the road taken by offenders of the law becomes a one way street. The one way street we call our criminal justice system is one leading to further criminality by the ostracizing of individuality. Manny your suggestion isn’t naive it maybe the intersection these individuals need. Why should any human being be caged if there is an alternative? Moreover, why place individual’s with totally different problems in the same institution, only creating further confounds in the process of so called rehabilitation? While we can’t fool ourselves into thinking that everyone can be changed, can’t we agree that those who can make up a disparaging population of injustice? The law is already as “black and white” as we need it ( no pun intended) Empathy practice in our judicial system may only lead to even further inequality and lack of consistency in the law nevertheless in our never ending search for the grey area I agree that empathy practiced in placement facilities can be progressive.
What you’ve written sounds very noble and even a bit romantic. I, just as much as the next person would like to see the works of something like your ideal prison system describes. Call me a pessimist, but how would a system like that receive the funding it needs? A lot of people would not feel too keen to hand their money so that “someone who made a mistake can put their life together,” and why should they literally pay for the broken plates of another? If we cannot even provide universal health care coverage for each other, I find it difficult to fathom a constructive prison system, or “anti-prison” system…
“The key to bettering our judicial system, I think, is to interpret the law as black and white while humanizing how we deal with those we do convict.” I agree.
As far as empathy is concerned, I feel we need our emotions to make rational decisions. Judges, just like the reading said, are people just like you and I, and they base their decisions on their background, their culture and their passion… and their biases… Sure it is not fair, but should we have a robot make all the white and black decisions that would be even more inconsiderate, ignorant and unaware of other factors and situations affecting the client. It sure does sound like one is playing at the casino, taking a chance and praying for luck when your life is on the line and the only thing you can do is hope the judge empathizes with you.
At the same time, how do we humanize those we convict without blurring the line of punishment for those who committed a wrong? An individual’s luxury of liberty is removed once one commits a crime not only because it’s a threat for the public safety, but also because of this karma ideology. You have to pay for your deeds. Like Vaughn said, “let’s not fool ourselves into thinking that everyone can be changed” And that’s the problem right there, how can we make the transition from thinking that rehabilitation is “over-permissiveness” to thinking of it as “pragmatist”? This only brings to mind Herb Sturz and how he utilized his pragmatist skills to humanize this one way road.
I totally agree with Marling that our judges need to exercise empathy & shouldn’t act as if they are robots. Why need judges when we can just look up the penal code of that individual’s violation and hand them their sentence without them fully presenting themselves as a human being. If judges did not exercise empathy then how can they exercise judicial discretion? I feel as though judges need to fully understand who is standing before them before they make an informed decision as to how to As long as they are consistent with attempting to be empathetic to each individual before they make a decision that would help eliminate any bias in their decisions.
As Thomas Giovanni has said, his job is to humanize his clients in front of the judge and only has very limited time to do so in court. During our visit to the courthouse we noticed where the judge and the defendant were both standing/sitting – judge is sitting perched up high while the client/defendant is standing before him with his hands behind his back or beside him. I was fortunate enough to have sat with a few judges and it was an amazing experience to sit next to the judge during the proceedings. Their job is almost like being a robot – they read their paperwork (with very limited time), listen to both sides (also with very limited time) and make an informed decision quickly because he/she has a long calendar to get through…but there were cases where the public defender will say something about the client that the judge stopped to listen.
Well Marling, when I was picturing these "secure facilities" in my mind i wasn't picturing a country club. Even if they're not prisons as we know them to be, they would still be unpleasant places with no luxuries and nowhere near the freedom a law-abiding citizen enjoys.
To me, some sort of punishment is necessary. However, our system needs to try to eliminate the factors that lead to crime (drug addiction, lack of education, etc) instead of just throwing people in a cage regardless of the crime.
This is such a complex and complicated topic… Individual passions and ideals can’t be refuted, but rational arguments can. So to have a legal system where we can derive satisfaction from a process that meant to follow logic, passion for anything but the “faithful execution of time tested precedents” must exist outside the courtroom. But, Thomas Giovanni reminded us, we forget these laws which we expect judges to interpret objectively were created on the basis of the popular subjective opinion. Take child abuse laws for example – children aren’t given their own set of protections just because they’re made from less material, but because we have a soft spot in our hearts for them. Empathic responses have been written into law. Outside of the United States, women who kill their children within the first 12 months of childbirth can be legally excused on account of “lactational insanity.” There are some probable correlations in science between the brain and the rise & fall of hormones post childbirth – but really, can’t this be an attempt for us to rationalize these women’s behavior as a product of mental instability instead of “badness”??
Now, if a judge is to develop empathy, that is, understand a defendant to the extent they can comprehend “a day in the life of X” – she or he may learn of something which strikes sentiment, priming judgments. As you get to know someone you tend to lose your impartiality, and impartiality is an important part of judicial decision making. Justice Sotomayor’s ability to remain impartial was questioned on account of how she defined herself. She is Latina and woman on account of biology – perhaps stating only these characteristics would not have driven so much speculation about her capabilities. In calling herself wise, Latina and female in the same sentence, its opens interpretation as to how loaded against impartiality is this combination of traits. Furthermore, the context allowed for interpretation whether the definition implied something of an insult toward the experiences of a Caucasian Supreme Court Justice who had been in place for 20 years. Accurately, with age and experience come wisdom – it is not a product of being female or Latina (for Sotomayor this just happens to be so). Her experiences add complexity to her existing gender characteristics and heritage, and understanding the complexity in your own life brings your closer to habitually taking into consideration possible intricacy of others’ lives. Awareness of the world’s complexity is very much related to one’s ability to be empathic in the cognitive sense: one can put aside strong sentiment because you have more awareness of its stem and are better versed in dealing with feelings from various experiences.
Manny, I agree with your alternatives to prison. I believe that simply throwing people in cages only bandages the problem and does not fix it. However, I do not think that having judges follow the black letter of the law and acting like robots is the way to go. After our court visit with Thomas Giovanni I have begun to question the so called objectiveness of the law. Our laws were created because we empathize at some point with certain groups within society. Most of the loitering laws like Mr. Giovanni points out were created because we empathized with homeowners desires to have their property free of unwanted people.
I read in the newspaper that MADD (Mothers Against Drunk Driving) were pressing the state legislature to pass a bill stating that anyone who drives a vehicle intoxicated with a minor will be charged with a felony. I know drunk driving is wrong, but should we punish people this severely. As a mom I empathize with MADD and would push for this bill. However, I also think that this bill is too strict. Should people's lives be ruin for one night of irresponsibility? Some of this people could loose their house ( a person is ineligible for housing if they have a criminal record) other could loose their opportunity to apply for US citizenship, loose their US residence, or could loose many job opportunities. My point is that empathy plays a role in the creation of laws. My question is why are we so afraid of practicing empathy in the courtroom? Why once the law is written do we refuse to admit that people's biases or empathy's were written into those laws?
“The daily per-inmate cost, as computed by county comptroller Lois Schepp, is $90.28.” (Reported December 11th 2008) My John jay transcript will prove I am the worst student in math but I managed to calculate that to being 32,952 dollars a year. Ok I lied, I used a calculator. “If just one inmate were let out of jail for one day, that cost would drop by $7.39” that’s $2,697, for a difference of 30,255. 30,255? My mother supported four young Jamaican kids on just a little more than that from 92 to 2000. 2,697 dollars sounds like what my health insurance took from me last year, needless to say not a great one. With that said money is not the issue at stake. The vast majority of individuals who end up back in prison are there because they couldn’t meet this standard of living without crime (that one way road). The real issue is we would rather lock up the problems “we’ve” created than work to rehabilitate them. In all reality taxes should go down, unlike some judges I don’t like to make uniformed decisions so that’s why I’ve spent the later part of my day on goggle. When we meet members of the opposite sex there are things we all look for (can’t divulge that information) however, this is not a quick process, nor is choosing a college, buying a car, or what you’re going to wear tomorrow. So why should all these things occupy more time than an offender gets in front of the honorable judge. Efficiency, remember that word from our mentor coffee? Yes I do understand that the system has to be efficient and even if we cut out the ridiculous things people are imprisoned for we would still have a large load on our hand right? To counter act this we need a more holistic approach, which is what Manny is getting at correct me if I’m wrong. Our government is our parent and teacher. No good parent or teacher only punishes one of their children. Good parents seek to find out what they themselves can improve up on right professor Reitz? So while I understand the need to be efficient in processing, I don’t understand how an individual who in essence makes what the average John Jay graduate will make next year comes out of imprisonment no better than they were before. The judge is only the figure head of a larger game. We have to seek out the real players to fix the problem.
I don't think this comment will really rise to the level of a full-blooded comment (given how thoughtful everyone has been), but I want to reiterate here something that made me uncomfortable in the seminar, also. There seems to be some slippage between "empathy" and "bias." Does there have to be? I don't think so. I think the fear of them becoming indistinguishable was part of the brouhaha surrounding Sotomayor's confirmation -- that you can't have empathy for a person without that automatically becoming a bias for that "kind" of person. I see the case of the white dude Manny writes about to be bias, not empathy. To me, a proper understanding of judicial empathy would be understanding that the law, however desirous it is to think of it as black and white, unfolds in an incredibly complicated web of human lives. Having that understanding seems quite distinct from according someone caught in that special rights.
If we start comparing math grades on transcripts, I'm in big trouble. But I agree with you, Vaughn, that good parents, like good teachers, are as interested in learning as they are in leading.
Professor Reitz, I agree that empathy does not have to equal bias but I think because people tend to use empathy in a biased manner (towards people they have a common connection with), we tend to view them as being linked.
Manny, I think you get at something really important when you mention the client being judged by a "committee" because I think one of the main problems is that there is only one judge. A single judge is left with all the power and there is no one there to really check his/her decision. If there were two or more judges looking at each case, then perhaps empathy would be applied more equally in the system. It would stop a judge from being racist or favorable to one particular group because there would be another judge or other judges to counteract that.
I think another difficulty when it comes to the justice system is finding a balance between punishment and rehabilitation. As a society we must try our best to put people on a straight path so they can be productive members of our communities but there is also a need in us to punish people for their bad actions...the problem is everyone has a different standard of punishment. And so I think the need to punish is something we must overcome to an extent (emphasis on extent; for some crimes a heavy prison sentence is well deserved) for the sake of bettering our society. If we don't want our emotions getting the best of us--our emotional need for punishment must not get in the way of the most pragmatic approach to the problem either. But once again the problem reaches much farther down from judges to police officers to the injustices and inequalities built into society...it's difficult to feel like you're not going around in circles when trying to think through these issues.
I feel like everyone has covered all angles. I definitely agree with Manny’s alternatives to prison, sound like a great idea, the idea takes me back to the discussion on prevention. In some cases I feel that the prison system keeps criminals as criminals by feeding the inevitable criminal behavior. I say this because yes there are regulations in place but in order to survive in prison one has to appear to be tough and dominating which continues to feed violence and most prisoners come out after their sentences even more violent and many recidivate . I also agree with Professor Reitz and Neethu on empathy and bias, empathy does not have to equal bias and the problem arise from the inappropriate use, where as Neethu says and was also discussed in class “people tend to use empathy in a biased manner (towards people they have a common connection with), we tend to view them as being linked”. Bringing it back to our discussion in class when it was said the judicial system is robotic, indeed I feel it is. How could it not be when judges need to follow some many laws and procedures? Can Justice be truly blind?
In part, I agree with Manny that there shopuld be other ways to sucessfully punish people; however, prison should not be taken out of the picture. If prison time is require for the individual(s) to understand the consequences of wrongdoing, it should be a necessary factor to punish people. I may sound very pessimistic but as Marling said, we do not know if these people can be fully rehabilitated or even if the people will be willing to pay for the rehabilitation of these offenders. In theory, It may create bigger conflicts or problems when the primary objective had been to better the system. Personally, I think that for certain individuals prison time is unnecessary, but for others it is a crucial of teaching offenders discipline, values, and commitment to stay positive. Nevertheless, all depends as to what methods judges use to makew their decisions. At a certain level. I believe judges use empathy or personal emotions and experiences to decide the punishment necessary. However, the question lies upon whether judges should use empathy to make their decisons, and if they do, does it better the system and the offenders, or does it create more conflicts and isuess?
Wow. Another powerful set of comments. In my view, Vaughn, in his second entry, is really getting to a set of questions we don't seem to spend enough time on. We're so focused on "after the fact," rather than getting at how the system itself has an interest in perpetuating what is.
But I'd like to use my entry to focus on the root of the discussion. I think I've written a lot so it will likely take up two entries. Please bear with me. Here goes:
I’ve actually come to the conclusion that in our class discussion we at times spoke about “Judicial Empathy,” and at other times “Judicial Sympathy.” I think my sense of confusion during our class discussion really centers on that—the use of the words or rather, the way we conflated them even though we sought to keep the distinction between them.
Oxford English Dictionary defines empathy as: “The power of projecting one's personality into (and so fully comprehending) the object of contemplation.” If someone has an experience of something that they recognize in an-other (a feeling, a sensation, even a literal experience or set of experiences), that is “empathy.” It does not necessarily translate into an action or a policy or a particular behavior. I might empathize with that mother who is stressed out in dealing with her child because I have “been there, done that.” That’s empathy. I might empathize with someone who is experiencing rejection because I have experienced rejection. That’s empathy. Some judges may have life experiences (shaped by gender, race/ethnicity, class, age, or whatever) that make it easier or more difficult for them to empathize with those who come before their court. It would be great if judges could be aware of which among all the folks in their court they more easily or less easily empathize with. In terms of empathy, I believe everyone (unless clinical socio-pathic) empathizes whether they are aware of it or not.
Oxford English Dictionary defines sympathy more extensively. Among the key definitions are: (noun): 1. a. A (real or supposed) affinity between certain things, by virtue of which they are similarly or correspondingly affected by the same influence, affect or influence one another (esp. in some occult way), or attract or tend towards each other. 2. Agreement, accord, harmony, consonance, concord; agreement in qualities, likeness, conformity, correspondence. Obs. or merged in 3a. 3. a. Conformity of feelings, inclinations, or temperament, which makes persons agreeable to each other; community of feeling; harmony of disposition. b. The quality or state of being affected by the condition of another with a feeling similar or corresponding to that of the other; the fact or capacity of entering into or sharing the feelings of another or others; fellow-feeling. Also, a feeling or frame of mind evoked by and responsive to some external influence. Const. with (a person, etc., or a feeling). c. The quality or state of being thus affected by the suffering or sorrow of another; a feeling of compassion or commiseration. Const. for, with (a person), for, in, with, rarely of (an event, experience, etc.). d. A favourable attitude of mind towards a party, cause, etc.; disposition to agree or approve. Const. with, rarely for, in.
Sympathy is also a verb: To have ‘sympathy’ or affinity; to agree in nature or qualities (with something).
End of part 1: Please see Part 2 next
Part 2 (hopefully I won't need a Part 3):
The laws on the books are not neutral. They are not “black or white,” but have been arrived at by a process in which certain positions were viewed more “sympathetically” than other views. These “sympathies” are then codified by the law. And so as I mentioned in class, (from Anatole France), “the law in all its majesty forbids rich and poor alike from sleeping under bridges,” is a law sympathetic to the rich who will never live under the bridge. It is a law not sympathetic to the poor. The law is not objective—it never is, as Thomas Giovanni stated to those of us in the criminal court tour last week—but simply becomes codified and appears objective. And when that happens, its “sympathies” get harder to see, get erased. Thomas also told us that he would agree to judges giving up any “judicial empathy” they may have for folks like the clients he serves IF they give up all their “judicial empathy”—the empathy they are not even aware that they have.
At bottom, it seems the tendency is to “worry” more about how, with clients such as those Thomas represents, empathy = sympathy = leniency. But there seems to be less worry about the ways in which those who make the laws and enforce them are codifying their sympathies (He/those with the clout to make law empathize with certain positions=sympathy=codified law).
Here’s an example. In an important article titled “The Evidence of Christian Nationalism in Federal Indian Law…,” Steve Newcomb notes that in 1835 the Tennessee Supreme Court, with sympathies with the “Christian” state (denying the legal rights of the “heathens,” the indigenous American Indians whose land was conquered in the name of Christianity) reiterated the right to claim the land and have sovereignty over it (and the right to coerce obedience) by means of “the law.” But it’s the white man’s law!!!! They just made the claim!! And then they reiterated that claim, codified in the law they made, regardless of what is “right,” or “just,” or “moral.” And the Tennessee Supreme Court, in this ruling, acknowledges that!! The following is from the TSC ruling:
“We maintain, that the principle declared in the fifteenth century as the law of Christendom, that discovery gave title to assume sovereignty over, and to govern the unconverted natives of Africa, Asia, and North and South America, has been recognized as a part of the national law, for nearly four centuries, and that it is now so recognized by every Christian power, in its political department, and its judicial… That, from Cape Horn to Hudson Bay, it is acted upon as the only known rule of sovereign power, by which the native Indian is coerced; for conquest is unknown in reference to him in the international sense. Our claim is based on the right to coerce obedience. The claim may be denounced by the moralist. We answer, it is the law of the land. Without its assertion and vigorous execution, this continent never could have been inhabited by our ancestors. To abandon the principle now, is to assert that they were unjust usurpers; and that we, succeeding to their usurped authority and void claims to possess and govern the country, should in honesty abandon it, return to Europe, and let the subdued parts again become a wilderness and hunting ground” (NYU Review of Law and Social Change 341: 1992-1994: 304-305).
It is these deep-seated sympathies that barely and rarely get the light of day that worry me the most.
I agree with you when you say that is depends on what judge you get, and it really does leave a bad taste in ones mouth. At one naive point in my life I thought the justice system was this ideal of putting the bad in jail and the judges were the knights protecting the citizens. However, we are just all expendable pawns in this corrupt world. Although they say a judge is supposed to follow the letter of the law, it is basically his own discretion. A judge can make or break a persons life. Empathy is something that we can love or fear, and I am not sure if we can have that in our justice system now. Remember like Vaughn said “if everyone was equal in society empathy would come like water.”
I sort of agree that since our system is so unequal right now, we should have empathy after the sentence. I know that parole is sort of like empathy, but that is not enough. But then again, how about empathy during the sentencing? For example I used to intern at the Red Hook Community Court, and Judge Calabrise would actually look into the persons situation. But then again, these were mostly misdemeanor and violation charges. So I am not sure if it is that we are not ready for empathy in our court system because of fear of bias or that we should start instilling a community court sort of empathy. I am torn because I want so badly for judges to actually care and listen to a defendants sistuation, but I know that judges would abuse this power. Then again why fear what is already happening? Judges are acting like the one in the Irishman’s case. I know people who have got away with so much just because they have family in the police force. Judges use “their empathy” and say oh well since you are related to an officer I see you have potential to do better in life. What the hell, shed a little kindness to poor minority since they need it more.
I like the example you gave, it is just like what would happen in a community court. A decision should be made based on that persons problem. Ideally I would want people placed in prison when they have committed a terrible crime or can cause serious harm to themselves and others. I would want them to receive proper treatment and do what the prison and jails should be set out to do, rehabilitate.
I like how Professor Stein puts it, if you don’t like the word empathy then just change your way of thinking to a pragmatist. As judge you see the problem listen to both sides, now think of the best solution that would protect the people and rehabilitate the defendant. Michael Eric Dyson and many others feel that prison is just a money making system. In an ABC special Black in America these jails are privatized and most of the inmates are black or Hispanic. This is not a coincidence minorities are not evil or bad people, we are just the ones more likely to get caught, screwed by the system, or just bluntly we are usually stuck in those crappy situations.
Professor Waterston and Vaughn are seeing the in-between the lines, and if I am understanding correctly, getting to the root of Who Benefits?
Why is it that minorities in blue collar are the ones facing harder jail time rather than white collar crime? How does this benefit the system? Well if we look at it like Dyson and how Black in America does, we see it as a system that makes money off of the dysfunction in causes in inner cities. Prison are private and they make money off of these individuals. How do we make more money? Have more prisoners. How do we get more prisoners? Have strict laws against certain crimes, like the Rockefeller drug laws.
How does Empathy play in all of this? Well I can’t say I know what judges are thinking when they make their decisions, but I know they are intelligent people and I know that they understand how the system functions. Just because they feel empathy and think of the solutions that benefit, perhaps there is a motivation or just a blockade that prevents them from making a decision that they want. I am not sure anymore what I am trying to say because there are so many ways to look at how our system functions with empathy as an option.
It’s obvious there’s so much inequity and inconsistency of the current sentencing structure. We (as a class) analyze the system so much, I think there’s an obvious need for a group to monitor and respond to the problems. Manny describes a jury of peers who would decide on the proper treatment for an individual convicted of a crime, but the time constraints on that are vague – and its hard enough finding people who are interested in participating in jury duty. Which stinks. However, there is the possibility we take Manny’s idea a step further, incorporating Professor Waterston and Vaugh’s thoughts, and look at the people who are really in charge of sentence structure. In all reality, judges and lawyers probably find the current sentencing structure confusing, so I’m pretty sure the general public wouldn’t find it any easier, but Gov Spitzer established a State Commission on Sentencing Reform which includes legislators, people from the department of corrections and other law enforcement, crime victim groups, etc. to get “softer on soft crime and harder on hard crime” which sounds like POSSIBLY a more individualized approach.
I also agree with Manny that a holistic approach is the way to go. Once in prison, individuals need services like education, employment services and other therapeutic sanctions if we don't want them to come out worse than they did going in - yet the more people we put in prison, the less room and money in the budget we have to spend on these services. Now, if you are convicted for any drug related charge you automatically get put in a drug program - this appears to get individualized treatment to offenders, but when you look into it, the legislation casts a wide net over all the possible individuals who may or may not need it, based on the idea they had their hands on a substance at some time or another. Still its a huge step up from the theory behind the Rockefeller Laws... Slow and steady (progression) wins the race...
Thomas Giovanni was talking about this case. It's tangentially elated to our topic and Justice Sotomayor is quoted in it...
"The U.S. Supreme Court appeared divided on Monday over whether states violate the Constitution by imposing a sentence of life without parole on juveniles who commit non-homicide offenses.
The justices heard arguments in two separate cases from Florida in which lawyers for Terrance Graham, who committed his crime at age 17, and for Joe Sullivan, who was 13 when convicted, argued that the sentences are cruel and unusual punishment under the Eighth Amendment.
"The sentence is unequivocal and cruel because it rejects any hope that the adolescent can change," said Graham's counsel, Bryan Gowdy.
Gowdy urged the justices to announce a per se rule that juveniles under the age of 18 cannot be sentenced to life in prison without parole. In the second argument, Sullivan v. Florida, Bryan Stevenson of the Equal Justice Initiative in Montgomery, Ala., sought to draw the line at age 14, but said he fully supported Gowdy's line as well.
Both lawyers relied heavily on the analysis in the Supreme Court's 2005 Roper v. Simmons decision striking down the death penalty for juvenile murderers. The majority in that case found that juveniles younger than 18 lacked the maturity and moral culpability of adults.
But Florida Solicitor General Scott Makar told the justices that "death is different." He warned that a "categorical rule" eliminating life in prison without parole would undermine Florida law. The state, he said, had enacted strong punishments for juvenile crimes in response to a serious problem. He also noted that many states have eliminated parole in their criminal justice systems.
"A categorical rule goes against the national trend and consensus," said Makar.
Several justices clearly have trouble with attempting to pinpoint at what age the punishment of life without possibility of parole would violate the Constitution and at what point a juvenile sentenced to life in prison would become eligible for parole review.
"What makes us more culpable after our 18th birthday?" Justice Sonia Sotomayor asked Gowdy.
"A line has to be drawn somewhere," responded Gowdy, adding that 18 is the age supported by social science studies of juvenile behavior and maturity.
Justice Samuel Alito Jr. told Gowdy, "You're making a per se argument that no matter how horrific the crimes, no matter if no remorse is shown, that person must be made eligible for parole?"
Gowdy said yes. "Life with parole gives some hope that later in time he may be released."
Chief Justice John Roberts Jr. repeatedly pressed lawyers for the juveniles and the state on whether a better solution would be to declare that the Eighth Amendment required judges to consider the youth's age in sentencing and then whether the sentence was "proportional" for an offender of that age and for the particular crime.
"Why doesn't that seem more sensible?" asked Roberts. "It avoids all of the line-drawing."
Gowdy said a judgment cannot be made at sentencing whether a juvenile can be rehabilitated. That judgment must be made later, he said.
Florida's Makar argued that judges now consider the offender's youth in imposing life without parole. "Age does matter," he said.
Stevenson urged them to reach the merits. "If you accept that Florida has adopted life in prison without parole for a child of 13, then you also have to accept that they have adopted it for a child of six," he said.
There are 111 inmates serving sentences of life without parole who committed their nonhomicide crimes when they were younger than 18, of which 77 are in Florida prisons. There are 73 13- or 14-year-old inmates serving such sentences"
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