The Empathetic Divide in Capital Trials: Possibilities for Social Neuroscientific Research

Abstract

This article proposes that social neuroscientific research may help lawyers better understand the empathic divide that exists between capital jurors and capital defendants. Craig Haney, Laura Sweeney, and Mona Lynch have expertly researched the empathic divide in capital trials—including the ways race influences how African American capital defendants experience a wider empathic divide than do white capital defendants. This article proposes that researchers examine the degree to which neuroimaging research might provide even more information about the depth and impasse of the empathic divide. Specifically, this article discusses how the social neuro-imaging research of Professors Lasana T. Harris and Susan T. Fiske may help understand how the thinking process that certain jurors undertake when they are considering capital defendants is less humanizing than the thinking process those same jurors undertake when they think about other people. If it is true that certain jurors cannot see capital defendants as human—that those jurors engage in less humanizing processes when reacting to capital defendants—then such jurors would be incapable of making an individualized assessment of the appropriateness of the death penalty for defendants whom they cannot see as human and, therefore, they should not be allowed to sit as jurors. Furthermore, if jurors are unable to view some capital defendants as human, then additional studies are needed to explore whether mitigating evidence introduced at trial on behalf of a capital defendant can enable a juror to see the defendant as human in order to make an individualized assessment about the appropriateness of the death penalty for that particular capital defendant.

Keywords: death penalty, capital punishment, juries, neuroscience, race, empathetic divide