Revolutionary Empathy

“No touching!” the corrections officer yelled at me, pointing at my outstretched hand as I sat down in the attorney interview room across from my client Raphael. “Oh right, sorry!” I snatched my hand away quickly. In my first year as a public defender, I had a hard time “un-learning” my natural instincts about how human interaction should work. On this occasion, I was meeting with Raphael at Rikers Island to interview him for a letter I was writing to the judge about why she should give Raphael a shorter jail sentence for his heroin possession case than the DA was recommending. During the interview, he told me stories of the abuse he had suffered at the hands of his foster brother after his parents died, and how, after an isolated childhood, painkillers had become the closest thing he had to support. At the end of the meeting, I thanked Raphael for sharing so much difficult and personal information with me. When I stood up, I looked over at the corrections officer who was watching me like a hawk. I tilted my head awkwardly toward Raphael, who nodded knowingly. I nodded back and told him I’d see him on his next court date.

The legal community prides itself on being able to separate facts from emotions. Aristotle wrote that “the law is reason free from emotion.” This makes sense to some extent. We expect juries, judges, prosecutors, and defense attorneys to be able to consider cases objectively. But psychologists caution us that emotions are at the core of all human behavior, whether we know it or not. Is it truly realistic to think that a person can turn that human, sentient part of themselves off, simply because they are in a courtroom? In some cases, the answer is clearly no. Research shows that favorable rulings by judges drop gradually from about 65 percent to nearly zero the longer a judge sits in court hungry or without a break.

As a former defense attorney and a fierce advocate for systemic reform, I’ve spent a lot of time thinking about the ways law and the legal mindset do and don’t serve those who find themselves ensnared by the criminal system. I have come to worry that the preoccupation with unrealistic intellectual objectivity cause us not only to ignore the ways emotions affect our decisions, but that the refusal to acknowledge our capacity for emotion undermines one of our greatest gifts as humans: our capacity for empathy.

March 6 was #Cut50’s National Day of Empathy, dedicated to generating empathy on a massive scale for millions of Americans impacted by the criminal justice system. The day recognizes that in order to reform our criminal justice system, we must first humanize and empathize with those who are impacted by it.

Our failure to recognize our inherent tendency to have and act on our emotions short-changes us from realizing the ways our humanity and our empathy are an asset. In my experience, the most impactful court appearances are ones in which the stakeholders in the room put their legal shields down and let the best of their beautifully human, emotional selves shine through. In shedding the pretense, we allow for the possibility of empathetic connection – one of our greatest skills as people.

Through the Juvenile Drug Treatment Court Initiative, I have had the honor of providing support to juvenile justice practitioners working to make their courts a place of rehabilitation and personal growth for the youth they serve. In our work with juvenile drug treatment courts, we encourage teams to dream big about what they can do for the lives of the kids they work with. Our training and technical assistance model is strengths-based: We seek to identify each team’s greatest strengths and build on them. When I ask a juvenile justice practitioner why they do their work, and they get a twinkle in their eye or a smile on their face when they talk about the kids and families they serve, I see that as a strength. When their overwhelming commitment to, concern about, and empathy for the kids they serve is so evident that it shows on their face, I see that as a win. That is precisely what we want to harness and build on. That glimmer, that smile, is where the promise of change starts. So for court practitioners feeling empathy for those you serve, I say harness it, nurture it, use it wisely. By doing so, you can make courtrooms healing, revolutionary incubators for radical systemic change.

Zoë Root is the project director of the Juvenile Drug Treatment Court Training and Technical Assistance Initiative (JDTC TTA).

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