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Empathy and the Law

May 28, 2009May 28, 2009 · 5 Comments ·

President Obama’s remarks about judicial empathy have inspired howls of protest from the right and furrowed the brows of legal traditionalists everywhere.

Sympathy means feeling sorry for another person; empathy means feeling another person’s pain as if it was your own. In a campaign speech in 2007, Obama spelled out the case for judicial empathy: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

So what could possibly be wrong with that?

Plenty, say the critics. As the image of a blindfolded Lady Justice suggests, the law is supposed to be blind. Judges are to rule strictly on the basis of the evidence before them and “settled law”. In theory, it shouldn’t matter whether the defendant is rich or poor, beautiful or ugly, famous or infamous, black or white, Christian or Muslim–the law treats all defendants and plaintiffs the same.

Judges who feel either empathy or revulsion for the poor wretch quivvering before the bar of justice are departing from the strict canons of judicial objectivity. A judge, the reasoning goes, is a referee who has no interest in the final score; he just wants the players to play by the rules.

So, Texas senator, John Cornyn says that Judge Sonia Sotomayor, Obama’s choice to fill the vacancy on the Supreme Court, “must prove her commitment to impartially deciding cases based on the law, rather than based on her own personal politics, feelings, and preferences”.

Is it just me, or does this line of reasoning reminiscent of Alice in Wonderland? The Queen of hearts (a spoof on Queen Victoria) is utterly lacking in empathy: “The Queen had only one way of settling all difficulties, great or small. ‘Off with his head!’ she said, without even looking round.”

Fortunately for Alice, the kind-hearted King of Hearts quietly commutes every death sentence his tyrannical wife imposes. In the real world, empathy and good judgement are sisters.

Does anyone really believe that Samuel Alito or John Roberts are never influenced by “personal politics or feelings”? Can anyone imagine John Cornyn showing the slightest concern that the two most recent additions to the Supreme Court might allow their conservative political opinions to influence their rulings? Of course not. The men were selected because they shared the president’s conservative values.

David Souter, the justice Sotomayor has been nominated to replace, has outraged ideological conservatives precisely because he refused to be guided by ideology.

Supreme Court justices certainly strive to leave subjective considerations out of the deliberative process; but the same apriori judgments and impulses that shape personal politics and ideological leanings bubble to the surface when legal issues are being weighed. If you believe abortion is always wrong you will ascribe relatively little constitutional weight to a woman’s right to choose. Why did the Supreme Court value the principal of equal access to education over “state’s rights” in 1954? For the same reason that the same court in earlier generations would have made the opposite call.

Empathy shades into bias only when jurists feel the pain of people like them while demonstrating utter disregard for folks on the opposite end of the social spectrum. The opposite of empathy is ignorance not objectivity. Who wants to be judged by a woman who has no sense of who you are, how you feel, how you have struggled and what you value?

In criminal cases built on circumstantial evidence much depends on how you view the defendant. Is this man capable of such a foul deed? This question must be answered, and a lack of empathy ensures a wrong answer.

Empathy generally fits hand-in-glove with the standards of due process. If you feel the humanity of a defendant you will want that person to get a fair, open and constitutional hearing. Corners are cut when nobody in the courtroom gives a damn.

G.K. Chesterton was known for blending morality with good humor (an unusual combination). Exactly 100 years ago, he served as a juror and was not impressed with the professionals in the courtroom. The problem: no empathy.

“Now, it is a terrible business to mark a man out for the vengeance of men,” Cheston observed. “But it is a thing to which a man can grow accustomed, as he can to other terrible things; he can even grow accustomed to the sun. And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.

Unlike legal professionals, Chesterton felt, a good juror empathizes with the victim, the alleged perpetrator and the families of both parties. This doesn’t make them biased. Biased jurors, like biased judges, feel the pain of the victim but give no thought to the humanity of the defendant. Jurors (and judges) get it wrong in capital cases precisely because the facts are so distressing. The blood of the victim calls out for justice with such urgency that no one bothers to ask if the right person has been summoned to the bar of justice. The thought of the crime going unpunished is so disturbing that the humanity of the accused vanishes. The accused must be guilty because the crime is so heinous.

Of course, the desire to punish must be held in abeyance until the guilt-innocence question has been decided. Judges who prejudge a case are tempted to rule for the state at every turn because it hastens the inevitable. Judges without empathy are bad judges.

The empathy debate pits reformers who believe life experience impacts judgement against traditionalists who believe nine white males would be perfectly capable of deciding any legal issue. Was it purely incidental that five of the nine justice who decided the Dred Scott case in 1857 were slave owners? Adding African Americans to the judicial mix would have changed nothing, traditionalists argue. In fact, black judges would have stripped the blindfold from Lady Justice because they identified personally with the travail of American slaves.

George Will dismisses Judge Sotomayor as a conventional liberal: “She embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender or sexual preference is, and members of a particular category can be represented – understood, empathized with – only by persons of the same identity.”

Quite so. None of us are impartial. We enter the world as self-serving tyrants and only painful encounters with other people can change us; that’s why we need religion. Experience gives us the capacity for judgement. Despite the best of intentions and a world of good will, if we know only people who look and think like us we will have a cramped view of the world. As we strive to feel as others feel as others feel we make real moral progress, but our capacity for empathy is tragically limited.

In explaining his vote against John Roberts, then-Senator Barack Obama noted that the well-groomed jurist had “far more often used his formidable skills on behalf of the strong in opposition to the weak” and “seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process.”

Men like George Will have no problem with “the remnants of racial discrimination”. They assume that standard-issue white American males will make the right call. They can be impartial because they lack empathy.

Teaching our racial history

May 5, 2009May 5, 2009 ·

Leonard Pitts uses a tragic story from Sarasota, FL to decry the growing influence of Neo-Confederate propaganda. With commendable sensitivity, Pitts sifts through a story reminiscent of Jena. There are no heroes and villains in this story, just victims.

Here’s the key insight: “If we were a people with the courage to teach our racial history fearlessly, and the foresight to inculcate in our children a reverence for civil liberties, this tragedy might never have happened.”

Grievance and rage combustible

By LEONARD PITTS JR.

lpitts@miamiherald.com

A few days ago, a high school student in Sarasota failed history and another failed civics. As a result, the one wound up shot in the chest and the other jailed on a charge of aggravated battery with a deadly weapon.

Here’s the story, as reported by The Sarasota Herald Tribune: On the last Friday in April, an 18-year-old white kid named Daniel Azeff and a friend went riding downtown in a pickup truck, yelling racially disparaging remarks and waving a Confederate battle flag. Azeff’s grandfather, Joseph Fischer, told the paper he has cautioned his grandson repeatedly about his fascination with that dirty banner. Azeff, he said, does not really understand what the flag means.

If so, he’s hardly alone in his ignorance. A generation of apologists for the wannabe nation symbolized by that flag has done an effective job of convincing the gullible and the willfully ignorant that neither the nation, the flag, nor the Civil War in which both were bloodily repudiated, has anything to do with slavery. It’s just ”heritage,” they say, as though heritage were a synonym for ”good.” As though Nazis, white South Africans and Rwandans did not have heritage, too.

For the record: In explaining its decision to secede, South Carolina cited ”an increasing hostility on the part of the non-slaveholding States to the institution of slavery.” Georgia noted its grievances against the North ”with reference to the subject of African slavery.” Mississippi said, ”Our position is thoroughly identified with the institution of slavery.” To which Confederate ”vice president” Alexander Stephens added: “Our new government is founded upon . . . the great truth that the Negro is not equal to the white man, that slavery, subordination to the superior race, is his natural and moral condition.”

So the notion that the Confederacy and its symbols have nothing to with slavery is tiresome, silly and delusional. In choosing to adopt one of those symbols that night, David Azeff took a history test of sorts — and failed.

As noted, Michael Mitchell’s test was in civics. Police say Mitchell, who is 18, black and a student at Sarasota Military Academy, saw Azeff’s flag, took offense and, when the white kid parked and walked down the street, confronted him. Azeff denied being a racist; he was, he said, just exercising his First Amendment rights. Police say the argument escalated, until Mitchell pulled a gun and shot Azeff in the chest.

Thus did Mitchell fail his own test. This is America. Daniel Azeff has a perfect right to express virtually any opinion he chooses, no matter how asinine or provocative, without being shot for it.

Thankfully, Azeff is expected to make a full recovery. Meantime, Mitchell, said to be a good kid who has never been in trouble before, remains jailed in lieu of $50,000 bail. It is difficult not to see a certain symmetry.

That’s not an argument of moral equivalence: Mitchell allegedly pulled a gun, so the moral weight for what happened rests squarely upon his shoulders.

And yet it’s also true that each teenager had what the other lacked. One knew his rights, the other, his history. But neither realized that you cannot fully appreciate the one without understanding the other. So each young man fell into the other’s blind spot.

If we were a people with the courage to teach our racial history fearlessly, and the foresight to inculcate in our children a reverence for civil liberties, this tragedy might never have happened. We are not those people. And because we aren’t, these two boys hurtled toward collision, hopped up on grievances and rage they were ill-equipped to speak — or hear. They took a test that night in Sarasota, and let no one be surprised they failed.

They never had a chance.

The Will to Secede

April 27, 2009December 10, 2009 · 5 Comments ·

(Readers of this post will be interested in the story of Curtis Flowers, a native of Winona, Mississippi who will soon go on trial for the sixth time on the same murder charges.)

According to a Rasmussen poll, only 18% of Texans would vote to secede from the United States of America if the vote were taken today.

An additional 7% would like time to mull it over.

In short, one quarter of the Texas voting population is willing to follow Governor Rick Perry into a new Texas Republic.

My guess is that the overwhelming majority of the secessionist folks are Republicans. Since the solid Republican base has been estimated at about 39% of the electorate it could be argued that Perry’s party is evenly split on the issue.

Maybe the Governor is just talking like a proud Texan. Everybody knows that native Texans feel more tied to their state than to their country. But successionist talk has been a common staple of the Southern neo-Confederate movement since the days of Brown vs. Board. Successionist rhetoric has traditionally been the province of those who long for the restoration of the Confederacy.

I just finished reading Neo-Confederacy: A Critical Introduction: a fascinating study of the most sophisticated strain of Southern racism written by a group of authors, many of them at least loosley affiliated with the Southern Poverty Law Center.

Edward Sebesta, a Dallas-based researcher who is probably the national authority on the issue, was part of the editorial team. I had never heard of either Sebesta or neo-Confederates until he contacted me a few weeks ago.

You can find Ed Sebesta’s blog here and his extensive essay on the prevelance of neo-Confederate mythology here. It’s pretty dense stuff, but the Dallas writer breaks some important new ground and deserves a hearing.

Sebesta has coined the term “banal white nationalism” to describe the unexamined assumption, especially common in the South, that America is a white nation, created by white folks primarily for white folks.

Banal white nationalism is contrasted to the kind of explicit white nationalism you will get from hardcore neo-conferate groups like the League of the South, the Council of Conservative Citizens and the Sons of Confederate Veterans.

There is nothing faintly banal about these organizations. They are committed to the values of the Old South, they feel utter contempt for the civil rights movement, they associate northerners with godless socialism and the Southland with orthodox Christianity, and they are committed to the principle of white supremacy. If neo-Confederates had their way in this wicked world they would re-establish the Confederacy in a heartbeat. Non-caucasians wouldbe allowed to live in this new-old realm so long as they understood that white is the color of normal.

Failing that, neo-Confederates will settle for “states rights”.

Banal white nationalism is a largely unexamined and unacknowledged creed rooted in the assumption that white people are normal Americans.

White nationalism is shaped by the kind of Confederate mythology usually associated with Margaret Mitchell’s Gone with the Wind, and D.W. Griffith’s the Birth of a Nation: a highly sentimental and idealized vision of a pristine Southland despoiled by the Yankee invader. In the popular mind, this mythos is wedded to public school mythology about Plymouth Rock Puritans, the heroes of the Revolutionary War, and the glories of Manifest Destiny.

When all of the heroes you read about in the history books are white you naturally assume that America is essentially a white nation. You will continue to think this way even if you are told repeatedly that you live in a pluralistic nation united by a common adherence to the American Constitution.

Stories trump abstractions every time.

I see three varieties of white nationalism.

First, there are crude racists of the KKK variety; the folks that attract attention by dressing funny and mouthing slogans that are no longer palatable in the public square. These are the people Americans love to hate. In fact, they are the only species of racist most people acknowledge.

Then you have the explicit white nationalists who are dedicated to the principle of white supremacy and dream dreams of a new Southern Confederacy. Explicit white nationalists denounce the civil rights movement as a federal conspiracy, lament the profligacy of Martin Luther King, Jr., and perpetuate every minority stereotype in the book. However, since they are well educated, write and speak standard English and don’t dress up in funny clothes most white Americans see them as normal Americans no matter how undemocratic and intemperate their rhetoric becomes.

Finally, we have Sebesta’s banal white nationalists, everyday Americans who see white as the color of normal. Although these people tend to be non-ideological, they have imbibed the public school historical mythology and embraced its implications. The television teaches them to honor civil rights icons like Martin Luther King and Rosa Parks and they willingly comply. Banal white nationalists see American as a white nation that is friendly to racial minorities.

A solid majority of white Americans fall into one of these three categories. Banal white nationalism is dominant in the Northern states. In the Deep South it’s okay to embrace explicit white nationalism so long as you choose your nouns and adjectives with care.

Suppose I am right; what impact would the prevelance of white nationalism have on the behavior of police officers and how would it impact the legal system?

Black defendants would be at a huge disadvantage with white prosecutors, judges and juries. At best, they are seen as resident aliens with only provisional rights.

If the tenets of white nationalism are fundamentally patriarchal, anti-egalitarian (and therefore undemocratic) what is the practical import of the due process protections hallowed by the US Constitution. As a practical matter, do these lofty principle really apply to black and brown people?

Now, where does Governor Rick Perry fall on the ideological continuum I have just described? Does he see America as a gloriously pluralistic mix of color, culture and ethnicity, or is he some species of white nationalist.

In the tradition of the Southern governers who have gone before, Perry is speaking the language of state’s rights. That doesn’t necessarily make him a racist or a white supremacist. There is nothing inherently racist about seeking a balance between federal and state power. But we all know what Southern governers meant by state’s rights in 1860 and 1957, and concerns should be raised when politicians toss around this kind of rhetoric.

When they’re talking secession it just gets worse.

Two points. First, Governor Rick Perry is a proud member of the Sons of Confederate Veterans. Second, the SCV has been moving in a radical, neo-confederate direction since 2002 and is now run by blatant racists.

This doesn’t necessarily mean that Perry can be identified with the SCV’s recent extremism. In the 1990s, the group had a strong anti-racist faction and received commendations from Bill Clinton. Maybe Governor Perry would be shocked if he knew what was going on.

But until the Governor’s allegiance to an increasingly racist organization is clarified friends of justice will be left with an uneasy feeling.

The final word on Jena (and beyond)

April 7, 2008 · 8 Comments ·

Jena, Louisiana still crops up in the media from time-to-time, usually as shorthand for abiding racism. Darryl Fears’ Washington Post feature on the decline of traditional civil rights groups tips the hat to the Jena phenomenon in its closing paragraphs.

When six black teenagers in Jena, La., were being prosecuted as adults last year in the beating of a white classmate, the local branch of the NAACP played a small role in defending their rights, but it was Color of Change.org that secured their release.

Color of Change deserves the accolade. Under the leadership of James Rucker, COC collected hundreds of thousands of signatures for a Jena petition and hundreds of thousands of dollars for the legal fight (every penny of which landed in the right hands).

Unfortunately, no one has won the release of the Jena 6; Mychal Bell is serving the last few months of his sentence and the other five defendants still face trial.

Moreover, the “local branch of the NAACP” was formed a year ago through the efforts of Friends of Justice, Tory Pegram, then of the La. ACLU, and Jena 6 families led by Caseptla Bailey and Catrina Wallace.

In late January of 2007, ten Jena 6 family members and Alan Bean of Friends of Justice drove to Baton Rouge, La. to meet with NAACP leaders. After waiting for three hours, we finally got five minutes with president Ernest Johnson. His message was simple: create an NAACP branch with 100 dues-paying members and we’ll be there for ya’ll.

We held up our end. The state NAACP waited for the story to go viral on the internet and become a staple item in the mainstream media–then they took an interest.

Darryl Fears is right about the endgame–Color of Change and radio personality Michael Baisden had far more to do with bringing 30,000 people to Jena than old-guard icons like Jesse Jackson and Al Sharpton.

But how did James Rucker of COC and Michael Baisden hear about Jena in the first place? Rucker was invited to participate by Tory Pegram (now a Friends of Justice board member). Pegram remembered the great work Color of Change had performed in the wake of Katrina and made the critical call.

Dallas-based Michael Baisden learned about Jena from reading the paper, watching television and surfing the net.

I have no problem with high-profile, high-capacity folks riding to the aid of the grassroots folks who do the heavy lefting early on. But I do have a problem with the self-promoting arrogance media celebrities commonly demonstrated in Jena.

James Rucker is a blessed exception. He came to town and worked with the grassroots people while the story was still catching fire.

Michael Baisden and Al Sharpton rolled into Jena in flashy limousines, grabbed a few soundbites from a compliant media, then headed off to Alexandria for a fundraiser. The next day, when concerned citizens from across the nation flocked to Jena, the big boys bickered backstage about who should command the premier venue.

Catrina Wallace, the brother of Jena 6 defendant Robert Bailey, had organized a Hip-Hop concert for local youth. The La. NAACP, afraid that the rappers might go to cussin’, bumped Catrina’s concert to the sidelines. Finally, the NAACP was dissed and dismissed by Baisden and Sharpton. In the end, there were two rallies: one featuring Baisden, Sharpton and friends; the other highlighting Jesse Jackson and the La. NAACP.

The folks who endured two nights on a bus to get to Jena found themselves wandering from one venue to the other, wondering what was going on. In the end, it didn’t matter. Few were aware of the internecine squabbling and a good time was had by all.

It was all good; but it could have been so much better.

Now, folks are wondering what happened to the Jena movement. We all gathered for a big rally; the House Judiciary Committee held a highly-publicized hearing into the matter; then interest dropped like a rock. What was that all about?

Any “movement” that owes its existence to the undeniable power of celebrity will eventually be done-in by celebrity’s impotent downside.

Michael Baisden was flying by the seat of his pants. He didn’t understand what Jena was all about and he never bothered to talk to those of us who had been living the story for half a year. The story got under The Bad Boy’s skin. He was outraged, and his passion translated powerfully to millions of listeners. Baisden called his “family” to join him in Jena for a big rally. The logistical ramifications were enormous. No one had time to ask what came next.

So nothing came next.

Al Sharpton doesn’t investigate civil rights abuses; he waits for other people to get the story to the media, then he swoops in wagging his finger at the evil doers. But Sharpton never knew what Jena was all about. Everything was reduced to his stock storyline: unequal justice for black folks.

Sharpton concluded that the criminal justice system should either try to noose boys as hate criminals or turn the Jena 6 loose. Like any good controversialist, Al doesn’t do nuance.

Because Sharpton is a media celebrity, his take on Jena became the last word.

Make no mistake; Jena is a story about unequal justice. But what lies at the root of this inequality?

Jena is a story about the sins of the fathers being visited upon the children. Jena is about racial insensitivity translating into bizarre public policy. Superintendent Roy Breithaupt should have known that nooses hanging from a schoolyard tree were a sign of fear and deep loathing. Relations between the noose boys and certain black football players were bad and steadily worsening. Everybody knew it. The issues needed to be addressed.

Trying the noose boys as hate criminals would have missed the point. These were kids, after all. They needed to be dealt with firmly, fairly and compassionately. They were not responsible for the legacy of Jim Crow racism, but their minds and hearts had certainly been twisted by it. Nothing short of a full program of education addressing all the historical, ethical, and relational issues the Jim Crow South has left in its weary wake would have been sufficient.

But Mr. Breithaupt wasn’t ready to confront Jena’s history, so he tossed his town’s dirty linen into the clothes hamper and hoped it would disappear.

When the noose incident was dismissed as a childish prank, the black community was outraged and the school was placed on lockdown. Reed Walters was called to an emergency assembly. This was another teachable moment, a second chance for someone in authority to address the key issue. Like the superintendent, Mr. Walters dropped the ball.

In a June hearing at the LaSalle Parish courthouse, Walters was asked if he had waved his pen in the air and told the students that he could make their lives disappear with a stroke of his pen. Walters owned up to the remark without hesitation. He thought the black students were overreacting to the handling of the noose incident and he wanted to give them a reality check. Black and white students, Walters told the court, needed to “work things out by themselves.”

This is America’s problem–we are leaving the children to work things out for themselves. When adolescent males are left to their own devices bones are broken and the blood flows freely. Thus it has every been; thus it will ever be. It’s the male code, and it will be followed with tragic inevitability unless the adults in the room step in and do some teaching.

That, Mr. Sharpton and Mr. Baisden, is what Jena is all about.

The real Jena story could have sparked a productive national debate. In fact, despite all the misplaced emphasis and the hollow theatrics, the real story has been told. It could have been told better, no mistake. But Jena has sparked a boistrous and sustained conversation about how we can break the chain of violence that eventually engulfed Justin Barker and Robert Bailey in Jena.

The most articulate response thus far has come from Marian Wright Edelman’s Children’s Defense Fund, an organization that’s asking the right questions and providing sane and workable answers.

So what’s next for Jena?

It all depends. If Reed Walters takes even one of these cases to trial, Jena will be back in the news. It might not make the front page, but the fires of controversy will be rekindled.

If Reed Walters agrees to a universal settlement involving no additional prison time, there will be a few passing references in the media and the story will quickly fade from view.

Frankly, I’m praying for the second solution because it is in the best interest of the Jena 6, the Barker family and the good people of Jena.

What’s it to be, Mr. Walters? The next move is yours.

But perhaps we are asking the wrong question. Instead of asking “What’s next for Jena?”, we should be asking what’s next for the criminal justice movement. Jena’s name is legion.

Friends of Justice continues to monitor the situation in Jena, but we have moved on. We’re working in Bunkie, Lousiana. We’re playing a bit part in a large coalition working for justice for the Angola 3. And we’re currently researching a case in Little Rock, Arkansas that cuts to the heart of America’s prison problem.

Fasten your seat belts, ladies and gentleman, we’re in for a bumpy ride!

Alan Bean

Friends of Justice