When Empathy Bites Back: Cautionary Tales from Neuroscience for Capital Sentencing

28 Pages Posted: 28 Sep 2016 Last revised: 7 Oct 2016

Sheri Lynn Johnson

Cornell Law School

Amelia Hritz

Cornell University, College of Human Ecology, Law, Psychology and Human Development Program, Students

Caisa Royer

Cornell University, College of Human Ecology, Law, Psychology and Human Development Program, Students

John H. Blume

Cornell Law School

Date Written: September 27, 2016

Abstract

Empathy lies at the core of the capital trial. If jurors come to see the defendant as “different,” “other,” or not “fully human,” they are more likely to determine that the defendant “deserves” the ultimate punishment, making what the Supreme Court has described as essentially a moral judgment about the value of the life of the accused. Conversely, if jurors can identify with the defendant, imagine his “walk in life,” or “see the world through his eyes,” they are less likely to choose the death penalty. Despite its importance and decades of research, empathy is not clearly understood, and its implications for capital trials are largely unexplored. This Article examines the implications of emerging neuroscientific findings regarding empathy for capital trials. We consider implications for jury selection, the presentation of evidence, and arguments by counsel. We conclude that the neuroscience findings we have summarized provide additional support for our prior conviction: It is not possible for a system of capital punishment to neutrally determine which defendants “deserve” death.

Keywords: Capital Punishment, Criminal Procedure, Death Penalty, Empathy, Neuroscience

Suggested Citation

Johnson, Sheri Lynn and Hritz, Amelia and Royer, Caisa and Blume, John H., When Empathy Bites Back: Cautionary Tales from Neuroscience for Capital Sentencing (September 27, 2016). Fordham Law Review, Vol. 85, Forthcoming; Cornell Legal Studies Research Paper No. 16-39. Available at SSRN: https://ssrn.com/abstract=2844348

Sheri Lynn Johnson (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-6478 (Phone)
607-255-7193 (Fax)

Amelia Hritz

Cornell University, College of Human Ecology, Law, Psychology and Human Development Program, Students ( email )

Ithaca, NY
United States

Caisa Royer

Cornell University, College of Human Ecology, Law, Psychology and Human Development Program, Students ( email )

Ithaca, NY
United States

John H. Blume

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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