Sentencing: A role for empathy

University of Pennsylvania Law Review

Volumn 160, Issue 6, 2012, Pages 1561-1584

  Chin, Denny ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 84863457286     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Review

References (86)

1. See, e.g., Kim McLane Wardlaw, Essay, Umpires, Empathy, and Activism: Lessons from Judge Cardozo, 85 NOTRE DAME L. REV. 1629, 1631 (2010)
2. ("No sooner had President Barack Obama uttered the word 'empathy' in connection with judicial appointments than the word took on a life of its own. It became a code word for judicial overreaching, and it served as the blank slate onto which politicians painted doomsday scenarios of a judiciary run amok." (footnote omitted)); Josh Gerstein, Obama's Search for 'Empathy' Shapes Supreme Court Replacement Debate, POLITICO (May 4, 2009, 4:15 AM), http://www.politico.com/news/stories/0509/22058.html (quoting Senator Orrin Hatch as saying, "What does [empathy] mean? Usually that's a code word for an activist judge.");
3. see also Major Garrett, Obama Pushes for 'Empathetic' Supreme Court Justices, FOXNEWS.COM (May 1, 2009), http://www.foxnews.com/politics/2009/05/01/ obamapushes-empathetic-supreme-court-justices ("How does President Obama spell 'empathy'? S-C-O-T-U-S.").
4. Matt Corley, Steele on Judges with 'Empathy': 'I'll Give You Empathy. Empathize Right on Your Behind!,' THINK PROGRESS (May 8, 2009, 2:37 PM), http://thinkprogress.org/politics/2009/05/08/39363/steele-empathize-behin.
5. In November 2009, following my confirmation hearing, written questions about empathy were collected and posed to me by Senator Jeff Sessions. For example, I was asked, "What role do you believe that empathy should play in a judge's consideration of a case?" and, "Do you think that it's ever proper for judges to indulge their own subjective sense of empathy in determining what the law means?" Confirmation Hearings on Federal Appointments: Hearings Before the S. Comm. on the Judiciary (pt. 4), 111th Cong. 835-36 (2011)
6. (written questions of Sen. Jeff Sessions, Member, S. Comm. on the Judiciary). Indeed, a website was created to track the responses of judicial candidates to the Senate questionnaire about empathy. See Senate Debate on Empathy, CENTER OR BUILDING CULTURE OF EMPATHY, http://cultureofempathy.com/ references/senate-debate (last visited Mar. 15, 2012)
7. Terry A. Maroney, The Persistent Cultural Script of Judicial Dispassion, 99 CALIF. L. REV. 629, 630-31 (2011)
8. (quoting THOMAS HOBBES, LEVIATHAN 203 (A.R. Walker ed., Cambridge Univ. Press 1904) (1651)).
9. See Diane S. Sykes, Gender and Judging, 94 MARQ. L. REV. 1381, 1387-88 (2011) (expressing disagreement with President Obama "to the extent that the President's standard for deciding hard cases is meant to suggest that a judge's empathy should determine the substantive content of the law").
10. See, e.g., United States v. Mullings, 330 F.3d 123, 124-25 (2d Cir. 2003) ("When interpreting the Guidelines, we begin with the basic rules of statutory construction, and we give all terms in the Guidelines their ordinary meanings unless there are persuasive reasons not to do so.").
11. See generally United States v. Verkhoglyad, 516 F.3d 122, 127-37 (2d Cir. 2008) (considering relevant statutory language, applicable guidelines, and Sentencing Commission policy statements in reviewing the sentence for reasonableness as to both length of sentence and process by which it was reached).
12. LEONARD B. SAND ET AL., MODERN FEDERAL JURY INSTRUCTIONS § 2.01 (Instruction 2-12) (2011). 9 Id.
13. See Guido Calabresi, Dedication, What Makes a Judge Great: To A. Leon Higginbotham, Jr., 142 U. PA. L. REV. 513, 513 (1993)
14. Erwin Chemerinsky, Korematsu v. United States: A Tragedy Hopefully Never to Be Repeated, 39 PEPP. L. REV. 163, 164-65 (2011)
15. Carlton F.W. Larson, Tribute, Judge Michael Daly Hawkins, The Jury System, and American Democracy, 43 ARIZ. ST. L.J. 49, 55 (2011)
16. ("Empathy is a virtue, and it is also a desirable quality in a judge, who of course must interpret and apply the law in the context of real-life cases. We cannot properly decide our cases without acquiring some insight into the contextual realities of each party's situation, and a judge's knowledge of the human condition and capacity to identify with others is important to that endeavor."). 11 See United States v. Ballard, 322 U.S. 78, 94 (1944)
17. Even after I was confirmed as a circuit judge in April 2010, I continued to sentence defendants, as I kept my entire criminal docket. 16 In fact, I sentenced many defendants more than once, as some would violate their terms of supervised release and would be brought back before me to be sentenced for the violations. For example, I sentenced a defendant in a securities case three times-first for the original crime and twice more for violations of supervised release. See Benjamin Weiser, A Judge's Education, One Sentence at a Time, N.Y. TIMES, Oct. 9, 2011, at MB1.
18. The New York Times published two comprehensive articles on sentencing that focused on a number of my cases. The first considered my sentencing of financier Bernard Madoff to 150 years in prison. See Benjamin Weiser, Madoff Judge Recalls Rationale for Imposing 150-Year Sentence, N.Y. TIMES, June 29, 2011, at A1. The second examined several more of my sentencings and addressed the difficulties and challenges judges encounter when passing judgment on individuals convicted of crimes.
19. See United States v. Tutty, 612 F.3d 128, 130-31 (2d Cir. 2010) ("We 'must first ensure that the district court committed no significant procedural error. .'"
20. (quot Probaing Gall v. United States, 552 U.S. 38, 51 (2007)));
21. United States v. Cavera, 550 F.3d 180, 189-90 (2d Cir. 2008) (en banc) (noting that judicial deference is warranted only if the appellate court is "satisfied that the district court complied with the Sentencing Reform Act's procedural requirements").
22. Cavera, 550 F.3d at 189 (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007));
23. accord United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010) (citing Cavera in observing that reasonableness is determined by examining whether a sentence is "within the range of permissible decisions").
24. U.S. SENTENCING GUIDELINES MANUAL chs. 1, 5-6 (2011) ("Introduction, " "Determining the Sentence," and "Sentencing Procedures").
25. FED. R. CRIM. P. 32 ("Sentencing and Judgment").
26. The Honorable Gerald E. Rosen, an experienced District Judge for the Eastern District of Michigan, has written about the emotional challenges of being a jurist as "[v]irtually every week[ he] receive[s] letters from the families of defendants who are facing sentence,. relating heart-rending stories of serious illness in the family, or financial hardship and deep emotional loss for the children, parents, spouses and other family members of the defendant." Gerald E. Rosen, The Hard Part of Judging, 34 SUFFOLK U. L. REV. 1, 6 (2000).
27. For example, when I sentenced Oscar Wyatt, Jr., who pleaded guilty to crimes involving the United Nations oil-for-food program, to a below-Guidelines sentence, I was influenced by the many letters submitted to me in support of Wyatt. Alan Feuer, One-Year Term for Oilman Convicted in Iraq Kickbacks, N.Y. TIMES, Nov. 28, 2007, at A12.
28. I received many such letters in the Madoff case. See United States v. Madoff, 626 F. Supp. 2d 420, 425-27 (S.D.N.Y. 2009) (addressing request by media to unseal emails submitted by victims);
29. Leslie Wayne, Madoff's Victims Speak in Court Letters, N.Y. TIMES
30. See, e.g., United States v. Abiodun, 442 F. Supp. 2d 88, 98-101 (S.D.N.Y. 2006) (calculating the amount of loss in a stolen credit report case), aff'd in part, vacated in part, 536 F.3d 162 (2d Cir. 2008).
31. See, e.g., United States v. Sangemino, 136 F. Supp. 2d 293, 298-301 (S.D.N.Y. 2001) (holding that an elderly widow in a securities fraud case was a "vulnerable victim" pursuant to section 3A1.1(b) of the U.S. Sentencing Guidelines Manual and imposing a two-level increase in the offense level).
32. See United States v. Fatico, 603 F.2d 1053, 1057 & n.9 (2d Cir. 1979) (addressing issues relating to evidentiary sentencing hearings and concluding that the government should not be held to a beyond a reasonable doubt standard of proof with respect to sentencing issues).
33. See Sangemino, 136 F. Supp. 2d at 296-98 (describing a series of phone calls in which the defendant unflinchingly lured and siphoned money from a widow despite her fall into financial troubles).
34. The defendant's intent, of course, and the extent of his culpability are factors to consider in determining the length of his sentence. See, e.g., Enmund v. Florida, 458 U.S. 782, 798 (1982) ("Unless the death penalty when applied to those in [the defendant]' s position measurably contributes to one or both of these goals [retribution and deterrence], it 'is nothing more than the purposeless and needless imposition of pain and suffering,' and hence an unconstitutional punishment."
35. (quoting Coker v. Georgia, 433 U.S. 584, 592 (1977))).
36. See FED. R. CRIM. P. 32(i)(4)(A)(iii) (requiring the court to provide the government an opportunity to speak at the sentencing hearing).
37. Cf., e.g., Payne v. Tennessee, 501 U.S. 808, 825 (1991) ("[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family." (alteration in original) (quoting Booth v. Maryland, 482 U.S. 496, 517 (1987) (White, J., dissenting)) (internal quotation marks omitted)).
38. Gall v. United States, 552 U.S. 38, 49 (2007).
39. See United States v. White, 301 F. Supp. 2d 289, 293, 296 (S.D.N.Y. 2004) (granting downward departure where a mother of five children, who also took care of her fourteen-year-old sister, pled guilty to bank robbery).
40. 18 U.S.C. § 3553(c) (2006); see also United States v. Buissereth, 638 F.3d 114, 117 (2d Cir. 2011) (holding that the court has a statutory obligation to state in open court the reasons for a given sentence).
41. Gall, 552 U.S. at 50;
42. accord United States v. Dorvee, 616 F.3d 174, 180 (2d Cir. 2010) (quoting Gall's language).
43. The New York Times interviewed several defendants I sentenced, including Daniel Sangemino. He was twenty-five years old at the time and had pled guilty to securities fraud. I sentenced him first to thirty-seven months, then to eight more months after he violated his supervised release, and then to an additional sixteen months after yet another violation of supervised release. At the third sentencing, I said to him: "I don't know what you are doing with yourself. This is really your last chance." Weiser, supra note 16. He completed his sentence and did manage to stay drug free. He told the Times that I had treated him fairly. He said about me: "I'll never forget his expression. He wasn't angry. He was, like, 'C'mon.'" Id. For a description of Sangemino's original criminal conduct, see United States v. Sangemino, 136 F. Supp. 2d 293, 294-98 (S.D.N.Y. 2001).
44. As the Supreme Court has held in the death penalty context, A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death. Woodson v. North Carolina, 428 U.S. 280, 303-04 (1976) (plurality opinion).
45. Gall, 552 U.S. at 49.
46. United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005)).
47. Prior to the Sentencing Reform Act of 1984 and the adoption of the Guidelines in 1987, district judges had "broad discretion" in sentencing. Koon v. United States, 518 U.S. 81, 92 (1996)
48. see also Williams v. United States, 503 U.S. 193, 219 n.17 (1992) (White, J., dissenting) (noting the "near-absolute discretion vested in the district courts prior to sentencing reform"). The Guidelines, of course, limited that discretion by requiring district judges to sentence within the applicable Guidelines range "if the case is an ordinary one." Koon, 518 U.S. at 92.
49. See United States v. Booker, 543 U.S. 220, 226-27, 245 (2005) (holding that (1) the Sixth Amendment as construed by Blakely applies to the federal Sentencing Guidelines and juries must find facts relevant to sentencing; (2) provisions of the federal sentencing statute making the Guidelines mandatory are unconstitutional and therefore must be "severed and excised"; and (3) as modified, the federal sentencing statute made the Guidelines "effectively advisory")
50. Blakely v. Washington, 542 U.S. 296, 298-300, 313-14 (2004) (holding that the defendant was entitled to a jury trial with respect to the disputed factual issue of whether he acted with "deliberate cruelty," which would permit the trial court to sentence him to an "exceptional sentence" above the "standard range")
51. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.").
52. See Kimbrough v. United States, 552 U.S. 85, 101 (2007) (concluding that the sentencing judge may consider policy disagreement with crack/cocaine disparity in the Guidelines when imposing sentence);
53. see also Spears v. United States, 555 U.S. 261, 264 (2009) (per curiam) (observing that Kimbrough recognized that district courts have authority to vary from crack cocaine Guidelines based on policy disagreement with them).
54. See Gall, 552 U.S. at 46 ("For even though the Guidelines are advisory rather than mandatory, they are. the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions.").
55. See Cavera, 550 F.3d at 189 ("It is now. emphatically clear that the Guidelines are guidelines-that is, they are truly advisory.").
56. In Rita v. United States, the Supreme Court held that a sentence within the applicable Guidelines range is not presumptively reasonable. 551 U.S. 338, 347 (2007).
57. United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008).
58. Gall, 552 U.S. at 46.
59. See, e.g., Graham v. Florida, 130 S. Ct. 2011, 2028 (2010) ("[T]he goals of penal sanctions that have been recognized as legitimate [are] retribution, deterrence, incapacitation, and rehabilitation." (citing Ewing v. California, 538 U.S. 11, 25 (2003) (plurality opinion)))
60. Kennedy v. Louisiana, 554 U.S. 407, 420 (2008) ("[P]unishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution.")
61. Hudson v. United States, 522 U.S. 93, 101 (1997) (recognizing that a punishment should serve "the traditional goals of punishment, namely, retribution and deterrence" (internal quotation marks omitted)).
62. Transcript of Sentencing Hearing at 47, United States v. Madoff, No. 09-0213 (S.D.N.Y. June 29, 2009).
63. Transcript of Sentencing Hearing, supra note 67, at 47-49. 71 In Graham v. Florida, when addressing the constitutionality of life without parole for a juvenile, the Supreme Court wrote: The State does not execute the offender sentenced to life without parole, but the sentence alters the offender's life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency-the remote possibility of which does not mitigate the harshness of the sentence. As one court observed in overturning a life without parole sentence for a juvenile defendant, this sentence "means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days." 130 S. Ct. 2011, 2027 (2010) (alteration in original) (citation omitted) (quoting Naovarath v. State, 779 P.2d 944, 944 (Nev. 1989)).
64. See Graham, 130 S. Ct. at 2026-30. The defendant was not apprehended, however, for nearly twenty years, and I could see that by then he had been able to change his ways and lead a productive life. I sentenced him to twenty-four years of imprisonment.
65. United States v. Leung, 360 F.3d 62, 64-65 (2d Cir. 2004); see also Weiser, supra note 16 (discussing the sentencing).
66. Leung, 360 F.3d at 66.
67. United States v. White, 301 F. Supp. 2d 289, 291 (S.D.N.Y. 2004);
68. White, 301 F. Supp. 2d at 290-91.
69. My grandfather was a waiter in Chinese restaurants, and I was one of five children raised by a Chinese cook and a seamstress who worked in Chinatown garment factories. Denny Chin, Representation for Immigrants: A Judge's Personal Perspective, 78 FORDHAM L. REV. 633, 635-38 (2009).
70. White, 301 F. Supp. 2d at 296.
71. See Graham v. Florida, 130 S. Ct. 2011, 2027 (2010) (observing that a sentence that denies hope renders good behavior and character development meaningless
72. (citing Naovarath v. State, 779 P.2d 944, 944 (Nev. 1989))). Of course, in many situations the absence of hope is debilitating not only for the defendant, but also for her family.
73. See Mark W. Bennett, Hard Time: Reflections on Visiting Federal Inmates, 94 JUDICATURE 304, 304 (2011) ("It is an awesome responsibility to take one's liberty away.");
74. Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 TOURO L. REV. 539, 539 (2007) ("Sentencing, that is to say punishment, is perhaps the most difficult task of a trial court judge.").
75. See, e.g., United States v. Farhane, 634 F.3d 127, 167 (2d Cir. 2011) ("[S]ummations. are not 'detached exposition[s].'" (second alteration in original)
76. (quoting United States v.Wexler, 79 F.2d 526, 530 (2d Cir. 1935))). As Professor Terry Maroney has noted, [L]aw is infused with emotion and ideas about emotion. Examples range from the excited utterance exception to the hearsay rule (reflecting the idea that statements made while in an intense emotional state are likely to be truthful), to heightened protection of homes (because of presumed emotional attachment to them), to awards of damages for emotional suffering (which assumes pain can be monetized), to victim impact statements (thought to promote emotional "closure"). Maroney, supra note 5, at 642.
77. Wexler, 79 F.2d at 529-30.
78. See Irving R. Kaufman, The Anatomy of Decisionmaking, 53 FORDHAM L. REV. 1, 16 (1984) ("[O]ur intuition, emotion and conscience are appropriate factors in the jurisprudential calculus.").
79. "[M]uch of the scholarship [on the role of emotion in the law] posits that it is not only impossible but also undesirable to factor emotion out of the reasoning process: by this account, emotion leads to truer perception and, ultimately, to better (more accurate, more moral, more just) decisions." Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. CHI. L. REV. 361, 368 (1996) (Pubitemid 126408716)
80. see also Stephen P. Garvey, "As the Gentle Rain Falls from Heaven": Mercy in Capital Sentencing, 81 CORNELL L. REV. 989, 1043 (1996) ("Emotions can. overwhelm or 'unhinge' our faculty of reason. Yet our emotions are not irrational. When we experience an emotion we generally do so for a reason. When, among other things, they are 'intelligently proportionate in intensity to their objects,' they act as 'trustworthy guides to moral insight.'" (footnotes omitted) (Pubitemid 126408829)
81. (quoting Michael S. Moore, The Moral Worth of Retribution, in RESPONSIBILITY, CHARACTER, AND THE EMOTIONS 179, 190 (Ferdinand Schoeman ed., 1987))).
82. See Edward J. Devitt, Ten Commandments for the New Judge, 47 A.B.A. J. 1175 (1961).
83. See Edward J. Devitt, Ten Commandments for the New Judge, 65 A.B.A. J. 574 (1979), reprinted in 82 F.R.D. 209 (1979).
84. Lawson v. U.S. Citizenship & Immigration Servs., 795 F. Supp. 2d 283, 285 (S.D.N.Y. 2011).
85. Lawson, 795 F. Supp. 2d at 294
86. Lawson, 795 F. Supp. 2d at 289-90.