A few ruminations about judging without empathy (and sentencing by computers)

May 29, 2009

While some SCOTUS nominee “empathy” discussion has been silly, the basic debate over the role of empathy in judging has a number of interesting facets. The folks at The Volokh Conspiracy, for example, have been talking through the issue in interesting ways in these recent posts:

Though I do not want to jump too deeply into the whole “empathy” debate, I cannot help but ruminate a bit on whether we would find it appealing to have judges without any empathy. Specifically, I am wondering if most folks would be comfortable and content being judged in various settings by a sophisticated computer rather than by a human being. Candidly, I do not have a certain answer or strong instinct about whether I would generally prefer being judged by sophisticated computers rather than by smart humans. Like all good questions, my answer to this query might just be “It depends.”

Usefully, sports provide an interesting example of one setting in which judging by computers seems preferable to judging by humans. As tennis fans know, disputed line calls in high-profile events are now judged by Hawk-Eye, a sophisticated ball-tracking system that reports whether a shot was in or out. My sense is that, because the criteria are objective and simple, having judging done by sophisticated computers is an improvement over judging done by humans in tennis line-calls.

But, of course, most legal decisions are not as simple as the in/out call in tennis. To continue the sports metaphor, we might say legal decisions are more like pass interference calls in football, with multiple dynamic (and subjective?) factors often in play (e.g., who initiated contact, was the contact excessive, was the ball catchable). In addition to being unsure if NFL officials should have empathy for certain players or teams — the Detroit Lions could sure use help — I am also unsure if I would want a computer making pass interference calls from a skybox rather than the human ref on the field.

To give this all a sentencing spin, recall some interesting comments by Judge Marvin Frankel nearly 40 years ago when he was complaining about judicial sentencing disparity. In Criminal Sentences: Law without Order (1972), Judge Frankel called for the creation of a “code of penal law” to “prescribe guidelines for the application and assessment” of the “numerous factors affecting the lengthy or severity of sentences.” (p. 113.) In so doing, he raised the specter of sentencing by computers in this nuanced way (at pp. 114-115):

It is not necessary, or desirable, to imagine that sentencing can be completely computerized. At the same time, the possibility of using computers as an aid toward orderly thought in sentencing need not be discounted in advance…. [T]his does not envisage the displacement of people by machines. The need for delicate and difficult judgments will remain for as long as a future as is now imaginable. What will change, we might hope, is the uncharted expanse in which such judgments are now undertaken.

In light of the empathy debate, I find its still timely to wonder if we would want any arena of judging under the law to become “completely computerized.” And, in light of decades of state and federal experiences with guidelines designed to influence “delicate and difficult” sentencing judgments, it is also timely to wonder more energy might now be put toward Judge Frankel’s suggested “possibility of using computers as an aid toward orderly thought in sentencing.”