Johnson, Hritz, Royer, and Blume When Empathy Bites Back March 4, 2019 POLI 421, Framing Public Policies

Why are we reading about empathy in a class on framing? Lots of framing is about generating a connection, or a distance Super-predators was a frame that dehumanized those children, suggesting they were like animals, literally. This dehumanization then allowed harsh treatment. “Person next door” or “that could have been me” or “there but for the grace of God go I” are frames that generate a connection. POLI 421, Framing Public Policies

Case of capital punishment… First rule of teaching: teach what you know, not what you don’t know! More generally, and seriously, as they write in the article, a juror cannot easily vote to end a person’s life if they empathize with that person. Rather, the state must dehumanize the defendant in order to allow the jury to reach that conclusion. POLI 421, Framing Public Policies

POLI 421, Framing Public Policies The "Empathic divide“ Social, historical, situational determinants of (criminal) behavior v. Dispositional or individual characteristics (We have seen this distinction a lot already this semester; others called it “essentialism” v. “incrementalism”) POLI 421, Framing Public Policies

Eight Definitions of empathy 1) knowing another person’s internal state, 2) adopting the posture of an observed other, 3) coming to feel as another person feels, 4) projecting oneself into another’s situation, 5) imagining how another is feeling, 6) imagining how one would feel in the other’s place, 7) feeling distress at witnessing another person’s suffering, and 8) feeling for another person who is suffering. See C. Daniel Batson, These Things Called Empathy: Eight Related but Distinct Phenomena, in THE SOCIAL NEUROSCIENCE OF EMPATHY (Jean Decety & William Ickes eds., 2009) POLI 421, Framing Public Policies

Affective v. cognitive empathy Affective: creates an emotional reaction to imagining the other person’s thoughts, feelings, and perspective Cognitive: imagining the world through the eyes of another person. POLI 421, Framing Public Policies

Evidence from the Capital Jury Project: 1) how heinous was the crime? 2) is the defendant still dangerous? 3) is the defendant remorseful? If that is what jurors say, in hundreds or thousands of interviews, that they care about, or determines their vote, then how to change that? POLI 421, Framing Public Policies

Some people have more empathy than others... women more than men, for example (unclear whether this is social or biological: no success "despite years of effort" to find physical differences in brains) older people more than younger people... People who have “been there” or suffered (but not always) POLI 421, Framing Public Policies

In-group and out-group empathy The role of race is powerful here. troubling studies in fn 91: people seeing pictures of people of the same racial group being pricked by a pin almost appear to feel pain themselves, but not when the picture is a person of another race... implicit bias: easier to see anger in out-group faces, harder to see sadness dehumanization: a key element in reducing empathy POLI 421, Framing Public Policies

POLI 421, Framing Public Policies A two-way street Empathy toward the victim may generate aggression toward the perpetrator of harm. So empathy can work in either direction, depending on where one feels the empathy. POLI 421, Framing Public Policies

Implications for jury selection: Racial bias in jury selection: no question about this, though it is illegal. Can a DA or a defense attorney ask questions to find "empathetic" jurors, then either reject them as hostile, or seek to seat them? Not so fast: the juror may empathize with the victim Not so fast: the empathetic juror may emphasize with the desire of the other jurors to convict and go home; that is, not be a hold-out. Not so fast: overcoming hardship can "harden" or it can "soften" when considering the next person. POLI 421, Framing Public Policies

Aggravators and mitigators: Aggravators: generate the idea that the criminal is an animal, or that the crime was animalistic. Aggravators: generate empathy with the victim. (Note: not discussed here is why drug-related crimes are often not capitally prosecuted: the victim does not generate such empathy.) POLI 421, Framing Public Policies

Two bits of background on this First, McGautha v. California, 1971 USSC case Mr. McGautha protested his death sentence on the grounds that the jury was given no guidelines about what circumstances should lead to death v. a life sentence. Is such “unbridled discretion” acceptable? Court ruling (still stands today): Such difficult things as when to apply mercy cannot be reduced to a mathematical formula, and in any case it is “beyond current human ability” to draw that line sharply. POLI 421, Framing Public Policies

POLI 421, Framing Public Policies So, aggravators can be enumerated, but jurors can find mitigation wherever they like. Let me tell you a little then about a case I’m working on for the capital defender’s office in East Baton Rouge, LA. Inmate is currently on death row, in Angola, since 2007 Question: is the Death Penalty system in that Parish fair? Evidence: compare the 6 people sentenced to death and the 35 people having been charged capitally with the full set of 535 homicides from 2000 through 2016. POLI 421, Framing Public Policies

POLI 421, Framing Public Policies First question, how many crimes are potentially capital? Answer, about 2/3. POLI 421, Framing Public Policies

Second question: do non-relevant factors drive the system? POLI 421, Framing Public Policies

Third, do legally relevant factors drive the system as they should? POLI 421, Framing Public Policies

Some notes from that last slide, and the one two slides before: Drive-by shootings occurred 21 times but were never prosecuted capitally, and were 95 percent of the time prosecuted as 2nd degree. (Hint: want 8 years for your murder? Do it from a car.) Drug-related crimes were among the most common aggravators, occurring 64 times, about 10 percent of all homicides. Statistically, these act as mitigators, reducing, not increasing the odds of capital prosecution. Top relevant aggravators: three or more victims (only 7 cases), elderly victim, child victim, cruelty to juvenile. POLI 421, Framing Public Policies

What do we take from there? Empathy with the victim: Elderly victim Child victim “Cruelty to juvenile” No empathy with the victim: Drug-related crime, drive-by Note, none of this has to do with the defendant. But it has a lot to do with empathy. POLI 421, Framing Public Policies

OK, back to the article, now on Mitigators Mitigators: the perpetrator was not born a devil Importance of stories about particular episodes Empathy with the family of the perpetrator Sometimes hard to generate a lot of good feelings after a capital trial, given the nature of the evidence and the prevalance of drugs / mental illness. So generating empathy might be indirect. POLI 421, Framing Public Policies

From their conclusions, interesting… We cannot resist noting that we are fascinated by the findings regarding asking subjects to imagine whether a wrongdoer likes vegetables. Asking jurors to imagine dietary preferences certainly would be unconventional argument, but perhaps these findings are simply confirmation of the broader principle that asking jurors to imagine the defendant’s walk in life in specific respects is likely to remind them that the defendant is an individual. Perhaps asking jurors how they thought the defendant felt when he was beaten with a pipe at the age of nine, or saw his mother shot at the age of twelve is as important as eliciting the details of his abuse or trauma. POLI 421, Framing Public Policies

Back to McGautha, we can’t draw the line between life and death… The neuroscience of empathy provides one more reason to believe that the decision to sentence another human being to death is inevitably an arbitrary one, and one that cannot be divorced from either race or caprice. While we can tinker with aspects of capital trials that exacerbate caprice and discrimination stemming from empathy, we cannot alter basic neural responses to the pain of others and therefore cannot rationalize (in either sense of the word) empathic responses. (from their conclusion, again) POLI 421, Framing Public Policies