Justice follows when empathy is evenly distributed

In his Oct. 20 column, "Our justice system must become more victim-centric," retired Judge Eugene M. Hyman argues that "the system must be made more victim-centric." In his article, he also stated that "If the pandemic has had any kind of benefit, it's that it has raised awareness of the function and dysfunction of our courts and our prisons."

I agree with Hyman that actions taken "to correct these problems" will only correct them if the problems are "considered thoroughly and acted on properly." I agree with the issues and concerns raised by Hyman. However, I greatly disagree that "the system must be made more victim-centric." Hyman mentions that "the criminal justice system also has its fair share of implicit biases against these victims, a problem that remains as persistent and pervasive as ever."

I am not suggesting that the system cannot or should not be made "more victim-centric." It does, however, depend upon what is meant by "victim-centric" and how that is accomplished. The United States incarcerates a far greater percentage of its population than any other nation in the world. In 2015, the people exonerated had served an average of 14 years in prison. Five of the people who were exonerated had been sentenced to death. Last I know, an average of one person every two and one-half days is exonerated after having been convicted of a crime they did not commit and after having served an average of more than 14 years in prison. It also bears mentioning that organizations working to exonerate people do not do so for all types of criminal offenses and that they tend to handle matters involving wrongful convictions and not those involving biased sentencing decisions.

My greatest concern with Hyman's article is when he wades into the topic of implicit bias. My published work on implicit bias has been widely cited and it is based upon the exact point I learned last week that I am being referenced for having "persuasively argued" in a soon-to-be-published article.

On Oct. 12, I received an email from one of the authors of that article stating: "We are citing your article as follows: 'Mark Baer (2020) has persuasively argued that the skills of EI are essential for reducing bias and that the narrow range of skills emphasized in law school does not include EI.' We've listed your article in our references as follows: Baer, M. B. (2020). The amplification of bias in family law and its impact, Journal of the American Academy of Matrimonial Lawyers, 32: 305-34." And just last week, I learned that an article of mine was cited in a recently published article titled "A Comprehensive Insight on Empathy."

I am not sharing this information to toot my own horn; rather, I am sharing it because the skills that lawyers and judges tend to be lacking in are the very same skills that "are essential for reducing bias."

In "A Comprehensive Insight on Empathy," the authors discuss the connection between the empathy associated with emotional intelligence and a decrease in bias. The authors also used the case of Brock Turner as an example of injustice that occurs when a judge's empathy favors the alleged perpetrator of a crime.

The same type of legalized injustice occurs when a judge's empathy favors the alleged victim of a crime.

It is essential to understand that judges are human and human beings possess empathy, whether they realize it or not. It is humanly impossible for judges not to possess emotional empathy unless they are sociopaths. Therefore, the answer to the problem of implicit bias in the courtroom is not to prevent judges from experiencing emotional empathy because that is not feasible unless we want to also require that only sociopaths become judges. Justice and fairness follow only when empathy is evenly distributed. If empathy favors the perpetrator or the victim and is not kept in check, justice and fairness cannot follow.

This issue was discussed in my article "Is focusing on perceived and actual biases misplaced?" that was published in the Sep. 21 edition of the Daily Journal.

-- Mark Baer

Pasadena