This article is reprinted with permission from the August 10, 2007 edition of the New York Law Journal. © 2007 ALM Properties Inc. All rights reserved. Further duplication without permission is prohibited. 8/10/07 N.Y.L.J. 2, (col. 3) New York Law Journal Copyright 2007 ALM Properties, Inc. All rights reserved.

The Sense of Justice; Empathy in Law and Punishment
By Markus Dirk Dubber
Reviewed by David Wrobel

An old joke: After receiving an important decision in a case, a lawyer calls his client to proudly proclaim that “Justice has prevailed!” The client’s response is immediate and emphatic: “Appeal!”

To those of us who make our living as litigators, the joke is, as they say, funny because it’s true. We know only too well that our clients – while usually convinced of the rightness of their own positions – have little interest in seeing “justice” prevail in the abstract.

But for society as a whole, of course, the concept of “justice” is no joke. Abstract though it is, it is the ideal upon which our entire legal system, but in particular our criminal law, is premised. Indeed we specifically define our criminal law system as the “justice” system, recognizing that its raison d’etre is the maintenance and dispensation of this theoretical construct. The most quintessentially American legal institution – the jury – is rooted on the idea that the community’s “sense of justice” can be harnessed and put to use.

In “The Sense of Justice,” Marcus Dirk Dubber examines the manner in which the “sense of justice” has been used and abused in our system of jurisprudence. A Professor of Law and Director of the Buffalo Criminal Law Center at SUNY Buffalo School of Law, he is well-qualified to present both a theoretical and practical analysis of the question.

At the start, Dubber wryly notes that most judges and law professors who have encountered the “sense of justice” seem to have had an unpleasant experience with it. The cases are legion where judges have been moved to act in a particular way because their sense of justice had been “offended, affronted, or shocked.” A closer look at many of these decisions reveals a less-than-scrupulous level of analysis, with limited precedential value. As Dubber notes, many of these decisions invoke the sense of justice “to end, and even to suppress, dialogue about justice rather than to advance it.”

But Dubber is not content to discard the “sense of justice” after collecting a few bad decisions. Instead he takes his analysis to a far deeper level, examining the works of legal theorists, philosophers and even psychologists and linguists to come to his own conclusion that a healthy “sense of justice” is a real, tangible and necessary component of the American legal system.

Of particular interest is a discussion regarding one of the most revered judges in American legal history, Learned Hand. As Dubber explains, Hand was particularly disturbed, in a rather prolonged and public manner, with the concepts of “good moral character” and “moral turpitude” in immigration cases. (A finding of the former was a requirement for citizenship whereas the latter required deportation.) Hand questioned what definition of “morality” should be utilized in his judicial determinations, recognizing that the imposition of his own personal standard was undemocratic, but equally worried about the difficulty of gauging the opinion of the community. Hand, like other scholars of his day, was always seeking a more scientific and objective way of proceeding, believing it best to avoid any semblance of emotionalism and irrationality when doing the work of the law.

It is interesting that Dubber, a legal scholar writing in a post-modern world, is not nearly as concerned with the need to eliminate emotion to proceed in a rational manner. He states that it would be a mistake to dismiss the sense of justice “solely on account of an unspecified distrust of emotional inroads into what is perceived as a body of rational legal rules. This position would reflect both a false dichotomy between emotion and rationality and an excessive confidence in the rationality of the law.”

Dubber concludes that there is such as thing as a “healthy sense of justice” and it is rooted in an emotion, namely empathy, which deserves a respected place in our system of law. Particularly in the area of criminal law, when a jury is presented with a case, Dubber believes that it has a duty to empathize with both the victim of the alleged crime and with the defendant. The failure to do so results in injustice.

Two cases cited by Dubber demonstrate his point. One involved the acquittal of a Ku Klux Klansman on trial for the murder of a black man in Mississippi in 1967. The second concerned an Arab American man recently charged with providing material support to al-Quaida; his lawyer said he felt compelled to accept a guilty plea because “one has to question whether a fair and impartial jury could be found anywhere in America today that could sit in judgment of an Arab-American in a case involving allegations of terrorism.”

Why do these cases represent injustice? Because of a basic lack of a healthy sense of empathy. In the first case, an all-white jury in the deep south of the 1960’s simply could not relate to the black victim of a hate crime – he was beyond the pale of their concern, a “non-person” to them. In addition, the jury clearly showed too much empathy for the defendant.

Similarly, the moral outrage that most Americans now feel toward acts of terror creates huge problems when it comes to the provision of a fair trial. By definition, terrorists show no empathy for the innocent victims of their acts. A wrongly placed “sense of justice” seems to imply that they deserve no empathy in return.

A healthy “sense of justice” means that all persons must be treated as persons under the law. The entitlement to a trial by jury by ones peers means that one is viewed as an equal human being.

A footnote: The Ku Klux Klansman discussed above was re-tried 36 years later by a federal jury on the same evidence, and a guilty verdict was returned in 3 hours. In the interim between the first and second trial, the value of an African-American’s life became widely recognized. The question is begged, as we fight the challenges presented by terrorism, when, if ever, an accused terrorist will believe he can get a fair shake in an American court.