When Empathy Bites Back: Cautionary Tales from Neuroscience for Capital Sentencing

Empathy lies at the core of the capital trial. If jurors come to see the defendant as “different,” “other,” or not “fully human,” they are more likely to determine that the defendant “deserves” the ultimate punishment, making what the Supreme Court has described as essentially a moral judgment about the value of the life of the accused. Conversely, if jurors can identify with the defendant, imagine his “walk in life,” or “see the world through his eyes,” they are less likely to choose the death penalty. Despite its importance and decades of research, empathy is not clearly understood, and its implications for capital trials are largely unexplored. This Article examines the implications of emerging neuroscientific findings regarding empathy for capital trials. We consider implications for jury selection, the presentation of evidence, and arguments by counsel. We conclude that the neuroscience findings we have summarized provide additional support for our prior conviction: It is not possible for a system of capital punishment to neutrally determine which defendants “deserve” death.