Abstract

Excerpted From: Kylee Gomez, Walking a Mile in Their Shoes Before Judging: Optimizing Judicial Empathy in the Criminal Sentencing of Black Americans with “Impact of Race and Culture Assessments”, 91 UMKC Law Review 171 (Fall, 2022) (166 Footnotes) (Full Document)

To empathize means to vicariously experience the feelings and thoughts of others to better understand their perspectives. We have all heard the maxim: before you judge another, you should walk a mile in that person's shoes. This age-old lesson, that we often first learn as children, takes on a new and deeper meaning as we mature and meet others who have different life experiences. During law school, students discover the importance of empathy by learning to advocate from the perspectives of adverse parties. In society, empathy provides a mechanism for addressing issues in diverse communities by encouraging individuals to embrace their differences and look for prosocial solutions. Given that empathy is necessary not only for human development and society but is also explicitly emphasized in the legal profession, how is it that the United States' criminal justice system still struggles to utilize empathy?

One nationally acknowledged case that exhibits the criminal justice system's failure to implement empathy occurred on May 25, 2020, after a convenience store employee called the police to report a man, George Floyd, for buying a pack of cigarettes with a counterfeit twenty-dollar bill. Soon after, the world witnessed police officer, Derek Chauvin, kneel on Floyd's neck. While other officers watched, Chauvin deprived Floyd of his ability to breathe until he eventually lost consciousness and died.

This act of police brutality was caught on camera and opened the eyes of millions to the need for change. Since George Floyd's death, much of the public's attention has been focused on legislative initiatives for reforming the law enforcement sector of the criminal justice system. While police reform is an important step, a simultaneous reform effort of the court system is necessary to achieve racial equality.

One aspect of the court system fueling racial disparity is criminal sentencing, with a state imprisonment rate for Black Americans five times larger than that of white Americans. Studies suggest that this disparity may stem from implicit biases of professionals within the criminal justice system. Implicit bias exists when prejudice is present but not consciously utilized in an individual's decision-making or thought processes.

This can be seen in the results of a study conducted in Minnesota that found Black Americans with darker skin tones were more likely to receive prison sentences than white Americans and other Black Americans with lighter skin tones. More specifically, after controlling for other relevant sentencing factors, the study found that with each unit increase in darkness of skin tone, there was a fifteen percent increase in the odds of a prison sentence rather than a stay of imposition. A likely explanation for these findings is the existence of implicit bias in judicial and prosecutorial decisions. Thus, this raises the question of how to address implicit bias within the court system to alleviate sentencing inequality.

To improve empathy in judicial sentencing decisions, the United States should consider following in Canada's footsteps by incorporating Impact of Race and Culture Assessments (IRCAs) as a prosocial method to counter racial bias in criminal sentencing. IRCAs are comprised of extensive psycho-social assessments that provide sentencing judges with a more in-depth and nuanced perspective of the unique background of each Black defendant for whom they are issuing a sentence. Encouraging the judiciary to empathize with Black Americans, in part, by considering how systemic racism has played a role in a person's criminal conviction may present one way to maximize empathy and minimize racial biases in sentencing decisions.

This Comment advocates for the implementation of IRCAs within the U.S. criminal justice system. Part II of this paper will discuss the need for these assessments by describing systemic racism in the United States and how it affects implicit bias and racially disparate sentencing. Part III will discuss how IRCAs work in Canada's criminal sentencing and how implementing these methods in the United States could cultivate greater empathy and decrease racial biases in the judicial system. Part IV will propose potential routes of implementing these assessments in the United States and will weigh the costs and benefits of adopting this sentencing reform.

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Diminishing racial inequality in the United States' criminal justice system can only be accomplished by fixing racial disparities in each sector: law enforcement, corrections, and the courts. While reform is needed in each part of the criminal justice system to achieve true equal justice for all, starting with sentencing reform could help initiate substantial change.

The continuing effects of systemic racism can no longer be ignored in sentencing decisions because they affect the lives of many defendants. IRCAs provide a solution that would optimize judicial empathy in sentencing and reduce racially biased decisions. These assessments provide information that allows the judge to gain a deeper understanding of the impact that systemic racism has played in each defendant's life. To ignore the impact of racially biased systems on Black American defendants is to ignore their experiences and struggles. Impact of Race and Culture Assessments help to ensure that judges are fulfilling their required role of empathizing with and providing a fair sentence for each defendant that comes before them.

J.D. Candidate, University of Missouri-Kansas City School of Law, 2023; B.A. Criminal Justice & Criminology and Political Science, University of Missouri-Kansas City, 2020.