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April 21, 2021 Ethics

Ethics and Empathy

By Marla N. Greenstein

The articles in this issue are difficult to read. Not difficult due to writing style or complexity, but difficult on a human emotional level. As judges and lawyers, we are trained to read dispassionately, analytically, and impartially. In fact, the ABA Model Code of Judicial Conduct values the objective impartiality of judicial decision-making above all else.

Rule 2.2 states the fundamental: “A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.” In fact, “fair and impartial” courts are a common aspirational standard in every aspect of court administration. Rule 2.3 asserts the essential analogue by requiring the absence of bias or prejudice. And affirmative judicial traits are set out in Rules 2.5 and 2.8 requiring judges to be competent and diligent, patient, dignified, and courteous.

What the Code of Judicial Conduct omits are concepts of compassion, empathy, restorative justice, and full consideration of the broad impacts of a judge’s decision. We know judges are sensitive to these concepts that add an essential human component to judging. Sentencing hearings, especially those of young defendants, often include statements that acknowledge the suffering of the victim as well as the real consequences of the punishment on the perpetrator. Courts around the country are recognizing that restorative justice alternatives are more successful than traditional court outcomes in many situations where reconciliation is possible. And racial justice studies have shown that without broader consideration of the impacts of individual judicial decisions on the ability of a party to hold a job or take care of a family member, our justice system perpetuates inequities.

In this issue of The Judges’ Journal, we are reminded by the Kendall and Wigle article that courts abiding by all traditional procedural expectations are contributing to a continuing traumatization of sex and labor trafficking survivors. What is required is a broader concept of “doing justice.” That article outlines some specific education and administrative recommendations. Diligence in these cases may require additional research and attention. Are the general jury instructions suitable and appropriate? Is the victim supported throughout the process in a way that ensures meaningful fairness? What are the unique characteristics of a victim-defendant that may require special accommodations?

Each article in this issue raises a question for thoughtful consideration. Rather than disengage and analyze, we are asked to embrace and empathize. The themes in this issue are a useful reminder that the Code of Judicial Conduct, while providing a framework, is not a comprehensive outline for ethical judicial decision-making. On a day-to-day basis, judges are asked to accomplish a very high call: provide justice. We know that justice includes the ability to apply the law fairly and impartially and with compassion. While the Code of Judicial Conduct outlines standards for maintaining impartiality, each judge is challenged to also bring humanity and compassion to the courtroom. Human trafficking issues bring that need and challenge to the forefront. Public trust and confidence in the courts can only be enhanced by our acknowledgment of the complexity and humanity that these cases bring with them.

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By Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at [email protected].