Empathy, Narrative, and Victim Impact Statements

Abstract

Part I of this Article considers the topic of emotion in the law. In large part, it is an appreciation of the current scholar ship, which has laid to rest the notions that law can be an emotionless endeavor and that reason can operate in a sphere untouched by emotion. However, it also identifies the need for a more nuanced exploration of these issues. Specifically, Part I notes that the current scholarship tends to treat emotions as monolithic, unambiguous entities; it has yet to contend with - much less incorporate in any meaningful way - the complex, unruly field of emotion theory.

Part I concludes that the recent scholarly focus on benign emotions such as empathy, compassion, and caring has been crucial in challenging the marginalization of these emotional modes in the legal context. Nevertheless, we must avoid placing undue faith in the power of these benign emotions and ask the difficult questions of what role these emotions ought to play and in which legal contexts they ought to play that role.

Part II follows a similar pattern. It is largely an appreciation of the scholarship on narrative, which has illuminated the pervasive narrative structure of legal discourse. Much of the narrative scholarship has focused on outsider narratives, which might be defined as stories by members of groups usually subordinated in, or excluded from, mainstream legal discourse. These stories both challenge preconscious assumptions about such subordinated or excluded groups and expose the partiality of the dominant narrative - that which masquerades as the universal perspective. Part II argues that the notion of outsider narrative is significant, first, because it provides a crucial normative grounding for narrative scholarship, and second, because in doing so it reveals the limiting principle that explains why more narrative is not always better.

I conclude that neither narratives nor benign emotions such as caring, empathy, or compassion are always helpful or appropriate in the legal arena. Whether a particular narrative ought to be heard, or a particular emotion expressed, depends on the context and the values we seek to advance. Part III applies the normative analysis and the limiting principle developed in Parts I and II in the concrete context of victim impact statements. In Part III, I argue that victim impact statements are narratives that should be suppressed because they evoke emotions inappropriate in the context of criminal sentencing. Specifically, victim impact statements appeal to hatred, the desire for undifferentiated vengeance, and even bigotry. In doing so, they may block the sentencer's ability to perceive the essential humanity of the defendant. More subtly, victim impact statements, in their insistence on evaluating the worth of victims, offend the dignity of the victim as well.