Why Empathy is an Adversary of Capital Defendants

39 Pages·2017·0.38 MB·English

by  Erik Aucion

Santa Clara Law Review
Volume 58|Number 1 Article 3
6-3-2018
Empathy Leads to Death: Why Empathy is an
Adversary of Capital Defendants
Erik Aucion
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Erik Aucion,Empathy Leads to Death: Why Empathy is an Adversary of Capital Defendants, 58 SantaClaraL. Rev. 99 (2018).
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EMPATHY LEADS TO DEATH:
WHY EMPATHY IS AN ADVERSARY OF
CAPITAL DEFENDANTS
Erik Aucoin*
Foreword by Ellen Kreitzberg**
TABLE OF CONTENTS
Foreword .................................................................................100
Introduction .............................................................................100
Soundtrack ..............................................................................105
I. What is Empathy? ................................................................106
A. A Deep Rooted, Though Not Uniquely, Human Emotion
............................................................................. 107
B. Related to, but Distinguishable from, Sympathy ....... 109
C. The Phases of Empathy ............................................ 110
1. Cognitive Empathy ............................................ 111
2. Physical Empathy .............................................. 111
3. Emotional Empathy ........................................... 112
II. The Impact of Race, Gender, Age, and Religion on Empathy
.....................................................................................112
A. Race ........................................................................ 113
B. Gender ..................................................................... 114
C.Age.......................................................................... 116
D. Religion................................................................... 117
III. “The Dark Side of Empathy” ..............................................120
A. Empathic Distress .................................................... 122
* Erik Aucoin graduated from Santa Clara University School of Law in December of
2017. Prior to attending law school Erik ran an independent record label (Lujo Records) from
2001 through 2015, through which he managed the release, promotion and distribution of
ninety-six albums from a variety of international bands. From 2004 through 2017 Erik
additionally worked in various Human Resources, Compliance, and Legislative roles in the
San Francisco Bay Area and Washington, D.C.
** Ellen Kreitzberg is a professor of Law at Santa Clara University Law School. She is
the Director of the Center for Social Justice. Kreitzberg is also a co-founder and director of
the Death Penalty College, a six-day training program for the defense of capital cases.
99
100 SANTA CLARA LAW REVIEW [Vol:58
B. Empathic Violence................................................... 122
C. Empathic Psychopathy ............................................. 124
IV. Empathy’s Impact On Capital Punishment .........................126
A. Mitigation ................................................................ 127
1. The Empathic Divide ......................................... 128
2. Racial Empathy and Mitigation .......................... 130
3. Imagination and Mitigation ................................ 131
B. Victim Impact Evidence ........................................... 132
1. Racial Empathy and Victim Impact Evidence..... 134
2. The Future of Vitim Impact Evidence ................ 134
Conclusion ..............................................................................135
FOREWORD
Bryan Stevenson1 reminds us that as we consider the use of the
death penalty, the question we should be asking ourselves is not whether
or not the defendant deserves to die—but rather whether we deserve to
kill.2 Stevenson challenges us to examine whether or not the state is able
to implement a system of capital punishment that is neither arbitrary nor
capricious.3
The modern era of the death penalty dates from the mid 1970’s. In
1972 the Supreme Court found the Georgia death penalty statute
unconstitutional under the “cruel and unusual” clause of the Eighth
Amendment.4 The result of this decision was to invalidate all existing
death penalty statutes around the country. States quickly went to work
to revise their death penalty statutes and to prosecute new cases in which
they sought a sentence of death. In four years, five of these cases made
it to the Supreme Court. The Court needed to determine whether these
statutes adequately addressed the concerns raised in Furman.5 Each
statute took a slightly different approach in its death penalty scheme. The
Court upheld three of the statutes and struck down only those that
1. Bryan Stevenson is the Executive Director of the Equal Justice Initiative (EJI) and a
civil rights attorney and anti-death penalty advocate.
2. Bryan Stevenson, We Need to Talk About an Injustice, YOUTUBE (Mar. 5, 2012), (at
7:52) https://www.youtube.com/watch?v=c2tOp7OxyQ8 (originally recorded at the March
2012 TED Conference in Long Beach, CA).
3. Stephen B. Bright, Counsel for the Poor: The Death Penalty not for the Worst Crime
but for the Worst Lawyer, 103 YALE L.J. 1835 (1994); see also Ellen Kreitzberg, Death
Without Justice, 35 SANTA CLARA L. REV. 485 (1995).
4. Furman v. Georgia, 408 U.S. 238, 239 (1972).
5. Gregg v. Georgia, 428 U.S. 153 (1976) (upheld); Profitt v. Florida, 428 U.S. 242
(1976) (upheld); Jurek v. Texas, 428 U.S. 262 (1976) (upheld); Woodson v. North Carolina,
428 U.S. 280 (1976) (invalidated); Roberts v. Louisiana, 428 U.S. 325 (1976) (invalidated).
2018] EMPATHY 101
imposed a mandatory sentence of death.6 These five decisions
established guidelines for what a constitutional death penalty statute
should include.7
Following the 1976 decisions, the Supreme Court spent the next
few decades reviewing challenges to the arbitrariness of the death
penalty. These included challenges to the standards for the effective
assistance of counsel,8 the admissibility of aggravating evidence9 and of
mitigating evidence,10 and the impact of race and racial attitudes on the
imposition of the death penalty.11
Even with these numerous challenges, the Court consistently
upheld the constitutionality of the death penalty even, in some cases, in
the face of extensive empirical data and evidence that demonstrated
unfairness in its application.12 Nonetheless, the Court imposed few if
any constraints on the states in the operations of their death penalty
statutes. There was, however, one issue around which the Court did
consistently reverse sentences of death; cases that demonstrated any
limitation or restriction on the jury’s ability to hear or consider
mitigating evidence.13 After striking down the mandatory death penalty
statutes in 1976, the Court reaffirmed that any sentence of death must
include a particularized consideration of the character and background
6. Woodson, 428 U.S. 280 (invalidated); Roberts, 428 U.S. 325 (invalidated) (In both
cases, the Court struck down the death penalty statutes that made the imposition of the death
penalty mandatory upon a finding of first-degree murder.).
7. See, e.g., Gregg, 428 U.S. at 206–07 (explaining the Court's rationale for finding
Georgia's new sentencing procedures constitutional pursuant the concerns articulated in
Furman).
8. Strickland v. Washington, 466 U.S. 668 (1984).
9. Zant v. Stephens, 462 U.S. 862 (1983).
10. Lockett v. Ohio, 438 U.S. 586 (1978).
11. McCleskey v. Kemp, 481 U.S. 279 (1987); see also Glenn L. Pierce & Michael L.
Radelet, The Impact of Legally Inappropriate Factors on Death Sentencing for California
Homicides, 1990-1999, 46 SANTA CLARA L. REV. 1 (2005).
12. In McCleskey, David Baldus presented to the court two studies, one that examined
the application of the death penalty on a state-wide basis in Georgia between 1973-1979 and
a second that examined the application of the death penalty in Fulton County Georgia where
McCleskey was sentenced to death during that same period. 481 U.S. at 286–87.
13. Mitigating evidence is presented during a penalty trial by the defense and provides
the jury with reasons why the defendant should not be sentenced to death. Lockett, 438 U.S.
586, 606–07; Eddings v. Oklahoma, 455 U.S. 104, 115–17 (1982) (a plurality of the Court
found that the trial and appellate courts erroneously failed to consider the trouble and abusive
childhood of the defendant as mitigation); Skipper v. South Carolina, 476 U.S. 1, 8–9 (1986)
(a unanimous Court reversed the death sentence where the trial court excluded evidence of
the defendant’s good behavior in jail); Hitchcock v. Dugger, 481 U.S. 393, 398–99 (1987)
(the Court reversed where the jury was told to consider only statutory mitigating evidence
which precluded them from considering factors such as the defendants deprived background);
Mills v. Maryland, 486 U.S. 367, 384 (1988) (the Court struck down a sentencing scheme that
required juror unanimity before it could consider a factor as mitigating evidence).
102 SANTA CLARA LAW REVIEW [Vol:58
of each defendant.14 A sentence of death could not be imposed simply
based upon the facts and circumstances of the crime. This constitutional
standard requires not only that the trial court admit all possible
mitigating evidence but that each juror selected for the case agrees that
he or she is able to consider the evidence.15
This brings us to the importance of empathy in jury deliberations.
If a juror is unable to feel any empathy for a defendant, is that juror able
to give the kind of individualized consideration of the character and the
background of that defendant that is required under the Eighth
Amendment? Stevenson’s question of whether “we deserve to kill” also
seems to ask whether jurors who are selected for a death penalty case
“deserve” to deliberate and issue of verdict of death.16 Can each juror
empathize with the defendant? In other words, can they follow the adage
that “before you judge a man, walk a mile in his shoes” [or moccasins or
boots].17 And if they cannot, do these jurors deserve to kill?
This article explores the history, meaning, and depth of empathy—
a concept often invoked, only occasionally understood, and rarely truly
practiced. After exploring the ideas of empathy, we must go back to the
question, "Do we deserve to kill?"
INTRODUCTION
Nick18 and Scott19 were, by all appearances at least, superficially
similar. They both lived in the San Francisco Bay Area.20 Neither were
particularly wealthy or accomplished in their career.21 And ultimately,
both were convicted of double murders of which their wives were
14. Woodson, 428 U.S. at 293, 302–03.
15. Morgan v. Illinois, 504 U.S. 719, 738–39 (1992) (a juror should be excused for cause
if the juror does not acknowledge his or her ability to consider the mitigating evidence that
the defense intends to present during the penalty phase of the trial).
16. See Stevenson supra note 2.
17. The exact origin of this quote cannot be identified. But in the book, To Kill a
Mockingbird, Atticus Finch instructs his daughter as follows: “You never really understand a
person until you consider things from his point of view, until you climb inside of his skin and
walk around in it." HARPER LEE, TO KILL A MOCKINGBIRD 36 (1960).
18. Nick Lee Terry. Thomas Farragher, Double-Murder Suspect Nabbed Oklahoma
Relatives Turn Him In, SAN JOSE MERCURY NEWS, June 4, 1990, at B1.
19. Scott Peterson. CNN Library, Scott Peterson Trial Fast Facts, CNN (Apr. 30, 2017,
8:39 PM), http://www.cnn.com/2013/10/15/us/scott-peterson-trial-fast-facts/index.html
[hereinafter Scott Peterson Trial Fast Facts].
20. Staff Report, Jurors Split on Death Penalty, THE MERCURY NEWS, Nov. 6, 1991, at
B5 [hereinafter Jurors Split on Death Penalty]; Louis Sahagun, Jurors Deliberate Peterson’s
Fate, LA TIMES (Dec. 10 2004), http://articles.latimes.com/2004/dec/10/local/me-peterson10
[hereinafter Sahagun, Jurors Deliberate].
21. See id.
2018] EMPATHY 103
victims.22 One way in which they were dissimilar was the sentences they
received for their crimes: Nick received a sentence of life in prison,23 and
Scott received a sentence of death.24
The distinguishing factor between the two is not immediately
recognizable. It was not the severity of their respective crimes, as both
were convicted of brutal double murders.25 Nor was it their social status,
race, gender, or criminal history; they were both middle class, white men
of similar ages with no criminal history.26 Geographic differences also
do not appear to be a factor as the men were convicted in the neighboring
counties of Santa Clara and San Mateo,27 neither of which is known for
rampant utilization of the death penalty. If anything, more factors were
present that might lead one to believe that the sentences would have been
applied oppositely to the defendants. For instance, multiple witnesses
saw Nick, the defendant sentenced to life, shoot his wife in the head.28
However, there were neither witnesses nor any significant physical
evidence linking Scott to the murder of his wife.29 Additionally,
following the murder, Nick kidnapped a pair of women at gunpoint, shot
at police, and attempted to cross the border into Mexico.30 Scott had not
attempted an escape when police apprehended him.31
The one clearly distinguishable factor that explains the sentencing
differences was the jury’s opportunity and ability to empathize with the
defendants and victims. During the penalty phase of Nick’s trial the
defense put his mother on the stand, who cried and displayed a photo of
Nick as a child riding a pony.32 Nick was convicted in 1991,33 just
22. Nick Lee Terry was convicted of killing his recently divorced wife and her new
boyfriend. Jurors Split on Death Penalty, supra note 20. Scott Peterson was convicted of
killing his wife and her fetus. Sahagun, Jurors Deliberate, supra note 20.
23. Jurors Split on Death Penalty, supra note 20. Following the jury hanging on the
death penalty the Santa Clara DA’s office opted to not retry the penalty phase. Id.
24. Scott Peterson Trial Fast Facts, supra note 19.
25. Id.; Jurors Split on Death Penalty, supra note 20.
26. See Farragher, supra note 18; Sahagun, Jurors Deliberate, supra note 20.
27. See Jurors Split on Death Penalty, supra note 20; Mark Arax & Don Wright,
Peterson Trial Is Moved to San Mateo County, LA TIMES (Jan. 21, 2004),
http://articles.latimes.com/2004/jan/21/local/me-laci21.
28. Farragher, supra note 18.
29. See Michelle Guido, Friend: Gunman ‘Snapped,’ THE MERCURY NEWS (May 26,
1990), at; GREG BERATLIS, ET AL., WE, THE JURY: DECIDING THE SCOTT PETERSON CASE
(1st ed. 2007).
30. Farragher, supra note 18.
31. Monte Morin & Dan Morain, Scott Peterson Arrested in Wife’s Slaying, LA TIMES
(Apr. 19, 2003), http://articles.latimes.com/2003/apr/19/local/me-laci19.
32. Jurors Split on Death Penalty, supra note 20.
33. Id.
104 SANTA CLARA LAW REVIEW [Vol:58
months after Payne v. Tennessee,34 but the judge in the case declined to
apply Payne or to allow Victim Impact Evidence.35 In the penalty phase
of Scott’s trial, the defense also tried to employ Empathy by having
thirty-eight of Scott’s friends and family members offer mitigating
evidence, including his “frail mother, Jackie, who . . . tearfully pleaded
for her son’s life, saying he could still do good from prison.”36 What the
defense in Scott’s case also had to contend with was the prosecution
pulling at the very same Empathic feelings by calling Scott’s mother-in-
law to the stand who screamed at him from the stand and wept while
recounting her first Mother’s Day without her daughter.37
Empathy is inexorably connected and exceptionally impactful to
the penalty phase of capital trials today. During the penalty phase, jurors
are relieved of the necessity to determine guilt and rather are asked to
solely focus on the appropriateness of the punishment.38 When relying
on Victim Impact Evidence39 and Mitigation Evidence,40 jurors are
frequently encouraged by counsel to Empathically “walk a mile in the
shoes” of both the defendants and victims. Empathy is not only a
determining factor in the penalty, in many cases (like Nick’s) it may be
the determining factor.
Part I of this article will review society’s understanding of Empathy
and its phases.41 Part II will discuss how major impediments to Empathy,
such as age, gender, religion, and race, can impact the death penalty.42
Part III will examine “the dark side of Empathy,”43 including its link to
34. Payne v. Tennessee, 501 U.S. 808 (1991).
35. Personal Communication with Karyn Sinunu-Towery, former Assistant District
Attorney, Santa Clara Country District, in Santa Clara, Cal. (Dec. 6, 2016).
36. See Sahagun, Jurors Deliberate, supra note 20.
37. See Louis Sahagun, Penalty Phase for Peterson Underway, LA TIMES (Nov. 30,
2004), http://www.latimes.com/la-113004laci_lat-story.html [herinafter Sahagun, Penalty
Phase]. This included Scott’s mother in law who from the witness stand yelled at Scott that,
"Divorce is an option, not murder." Id.
38. LINDA E. CARTER ET AL., UNDERSTANDING CAPITAL PUNISHMENT § 7.02 (3d ed.
2012).
39. Victim Impact Evidence includes statements from family members of a victim
detailing how the murder affected the family and community. Payne, 501 U.S. 808.
40. Mitigating evidence is presented during the Penalty phase of a capital trial, and may
include mental illness, young age, childhood abuse, remorse, or a minor role in the homicide
in an effort to reduce the culpability of a defendant and encourage a jury to select a life
sentence rather than death. Definition of Mitigating Evidence, US LEGAL: LEGAL
DEFINITIONS (Jan. 20, 2017), https://definitions.uslegal.com/m/mitigating-evidence/.
41. See infra Part I.
42. See infra Part II.
43. Paul Bloom, The Dark Side of Empathy, THE ATLANTIC (Sep. 25, 2015),
https://www.theatlantic.com/science/archive/2015/0
9/the-violence-of-empathy/407155/.
2018] EMPATHY 105
rage and violence.44 Finally, Part IV discusses the ways in which these
impediments to Empathy, coupled with dark Empathic impulses drawn
out from jurors, lead to a “wanton,” “freakish,” and unconstitutional
application of the Death Penalty.45
SOUNDTRACK
While reading this article, the author recommends listening to the
following soundtrack. These songs have been selected due to their
connection with the material. The footnotes following each song
recommend which part of the article the song should be paired with.
1. AJJ, CANDLE IN THE WIND (BEN’S SONG) (Plan-it-X Records
2008).46
“Love is all we need. Except love isn’t all we need. We need
compassion. And we need Empathy. And we need love (a little
bit). And we need some money.”
2. THE VELVET TEEN, 333 (Slowdance Records 2006) 47
“You are the person you’ve been always, you were just too
young to know yourself back then. And if you think that you
can change, well then I hope you’re right. Not even god can
change your nature, but you can hold back, right?”
3. NICK CAVE & THE BAD SEEDS, THE MERCY SEAT (Mute 1998)48;
See also JOHNNY CASH’S COVER OF THE MERCY SEAT (American
Recordings 2000).
“And in a way I’m yearning to be done with all this measuring
of proof. An eye for an eye and a tooth for a tooth. And anyway
I told the truth. And I’m not afraid to die.”
4. AMERICAN FOOTBALL, STAY HOME (Polyvinyl Records 1999). 49
“Don’t leave home again if Empathy takes energy, cause
everyone feels just like you.”
5. AKRON/FAMILY, EVERYONE IS GUILTY (Dead Oceans 2009). 50
“Everyone, everyone, everyone. Everyone, everyone,
everyone. Everyone, everyone, everyone. Everyone,
everyone, everyone.”
44. See infra Part III.
45. See infra Part IV; See also Gregg v. Georgia, 428 U.S. 153, 207 (1976).
46. See infra Part I.
47. See infra Part II.C.
48. See infra Part II.D.
49. See infra Part III.A.
50. See infra Part IV.
106 SANTA CLARA LAW REVIEW [Vol:58
6. THE PAPER CHASE, A LITTLE PLACE CALLED TRUST (Beatville
Records 2002). 51
“You deserve whatever you get, because you are not the
innocent . . . What do you take me for? You don’t want
freedom; you want trick photography. The jury laughs at you,
love.”
7. SUFJAN STEVENS, JOHN WAYNE GACY JR. (Asthmatic Kitty
Records 2005). 52
“And in my best behavior I am really just like him. Look
beneath the floor boards for the secrets I have hid.”
8. ALOHA, FLIGHT RISK (Polyvinyl Records 2016). 53
“Without Empathy the fools won’t bother me and all that’s left
to see now are the feathers at the bottom of the box.”
9. ELLIOT, CALM AMERICANS, (Revelation Records 2000).54
“It’s all been Americanized that’s all. You symbolize the
message that we’re all ok with.”
10. PLANES MISTAKEN FOR STARS, CROOKED MILE (Abacus
Records 2006). 55
“We tip to the measuring line, to be fit for a box of pine.”
I.WHAT IS EMPATHY?
“Yet, taught by time, my heart has learned to glow for other’s good,
and melt at other’s woe.”56
Empathy is illogical at its core. Genuine Empathy means
understanding and feeling an emotion based on witnessing another who
is, or should be, experiencing that emotion.57 The empathizer need not
be subject to stimuli which would naturally lead to that emotional
response.58 In fact, research has shown that people use mutually
exclusive neuropathways to either empathize or logically analyze a
51. See infra Part IV.A.
52. See infra Part IV.A.3.
53. See infra Part IV.B.
54. See infra Part IV.B.2.
55. See infra Conclusion.
56. HOMER, THE ODYSSEY line 269 (A.S. Kline trans., Poetry in Translation 2016),
http://www.poetryintranslation.com/PITBR/Greek/Odyssey23.php.
57. See, e.g., Steve Taylor Ph.D., Empathy The Ability that Makes us Truly Human,
PSYCHOL. TODAY (Mar. 24, 2012), https://www.psychologytoday.com/blog/out-the-
darkness/201203/Empathy-the-ability-makes-us-truly-human; Claudia Gold, M.D., True
Empathy: A Physical Sensation, PSYCHOL. TODAY (Sep. 1, 2011), https://
www.psychologytoday.com/blog/child-in-mind/201109/true-Empathy-physical-sensation.
58. Id.
2018] EMPATHY 107
situation.59 In other words, one cannot be simultaneously empathetic and
logical.60 Despite the illogical nature of Empathy, it is hard to argue that
Empathy has not led to great good. Empathy can lead to deeper
connections with, and better understandings of, others. As Mahatma
Gandhi said, “three-fourths of the miseries and misunderstandings in the
world will disappear if we step into the shoes of our adversaries and
understand their standpoint.”61
In his first major work, Down and Out in Paris and London, George
Orwell tells the story of his Empathic experiment. Orwell left his
privileged life to live among the tramps of East London. The final
passage of the book reflects his resulting new Empathic perspective:
I can point to one or two things I have definitely learned by being
hard up. I shall never again think that all tramps are drunken
scoundrels, nor expect a beggar to be grateful when I give him a
penny, nor be surprised if men out of work lack energy . . . That is a
beginning.62
A.A Deep Rooted, Though Not Uniquely, Human Emotion
Emotions intersect human life in a multitude of ways. Clare
Huntington, Associate Dean for Research, and Professor of Law at
Fordham University School of Law, described emotion as being
“interwoven into every aspect of our lives—the trading floor, the
classroom, the playing field, the street, the courthouse, the kitchen
table.”63 This cacophony of emotion has varied degrees of impact on
individuals based on their ability to recognize, cognitively understand,
and be influenced by the emotions of others.
Empathy has enjoyed something of a day in the sun over the last
decade with countless books, articles, and Ted Talks,64 which have
referred to it as an “essential skill.”65 Empathy training for managers is
59. Anthony I. Jack, et al., fMRI Reveals Reciprocal Inhibition Between Social and
Physical Cognitive Domains, NEUROIMAGE (2012).
60. Id.
61. M. K. GANDHI, ALL MEN ARE BROTHERS 88 (Krishna Kripalani
ed., UNESCO/World Without War Publications, Paris 1969).
62. GEORGE ORWELL, DOWN AND OUT IN PARIS AND LONDON (Victor Gollancz 1933).
63. Clare Huntington, Embracing the Affective Family, 33 HARV.J.L. & GENDER 321,
321–23 (2010).
64. Empathy, TED, https://www.ted.com/topics/empathy (last visited December 14,
2016).
65. KARLA MCLAREN, THE ART OF EMPATHY: A COMPLETE GUIDE TO LIFE’S MOST
ESSENTIAL SKILL (2013); BRUCE PERRY & MAIA SZALAVITZ, BORN FOR LOVE: WHY
EMPATHY IS ESSENTIAL—AND ENDANGERED (2010); The author notes the use of the term
“skill,” and recognizes that many refer to it as such, but the author has taken the position that
while accessing it may require a degree of skill that can be learned, Empathy is, at its core an