Empathy and Moral Progress

By Sherry F. Colb

In my column for this week, I discuss the U.S. Supreme Court case of Cavazos v. Smith, in which the Court summarily reversed a Ninth Circuit decision instructing the district court to grant Shirley Ree Smith's petition for habeas corpus.  Smith was convicted of assault on a child resulting in the death of her grandson, Etzel Glass.  Smith argued on appeal that the evidence was insufficient to support her conviction, but the state courts rejected her claim.  When she petitioned for a writ of habeas corpus, however, a setting in which the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires enormous deference to state court decisions, the Ninth Circuit  accepted Smith's argument that the jury had convicted her in the absence of sufficient evidence, concluding that the state courts had acted unreasonably in deciding otherwise on direct appeal.

As I discuss in my column, the Ninth Circuit appears to have defied the applicable standards under AEDPA, given the expert testimony that the jury heard at trial and was entitled to believe.  Yet Smith nonetheless appears to have been innocent.  She had no history of violence toward her grandchildren or anyone else, the baby was not crying near the time of his death (a common provocation for child abuse), and the autopsy evidence was in some tension with the prosecution's claim that Smith had violently shaken her grandson.  Further strengthening the case of Smith's innocence is recent medical knowledge calling into question the prosecution experts' testimony ruling out the possibility of innocent explanations for the equivocal autopsy results.  Stated plainly, though the Ninth Circuit stated the AEDPA standards correctly and claimed to be following them, it may have ruled in favor of the respondent in defiance of AEDPA's commands because it hoped to protect an innocent grandmother from having to remain in prison.

In my column, I note that the dissent seems to share the Ninth Circuit's view of Smith's innocence.  The dissent thus condemns the majority for granting review in a case that is not cert-worthy just to perpetrate an injustice.  Why does the Court do this?  The dissent proposes that it is to teach the Ninth Circuit a lesson.

In the end of my column, I analogize the Supreme Court majority's indifference to the impact of its ruling on Shirley Smith to the failure of an abusing parent to empathize with his child.  In this post, I want to say a bit more about that analogy.

When we have power over another individual, whether that individual is an innocent adult, a child in our care, or anyone else, we can decide to privilege our own desires over the interests of that individual.  Historically, moreover, we have done precisely that.  In the time that humans have lived on this planet, our predecessors have eagerly embraced atrocities that included the slave trade, the routine murder of enemies' family members,  the routine rape of enemies' wives and daughters as a perquisite of victory in battle, public burning of "witches," and gatherings at which crowds would cheer as people were tortured to death for trivial infractions, to name just a few examples.  In Steven Pinker's book, The Better Angels of Our Nature, he argues persuasively that humans have -- with fits and starts -- become increasingly less violent over the centuries, a process that has continued to this day and that leads us to find the conduct of our forebears a shocking embarrassment to humanity.

Pinker hypothesizes a number of explanations for the peace that prevails among most human beings.  One important account, and one on which I want to focus here, is empathy.  Moral outrage against human slavery, for example, required people to identify with the slave's experience and, to some degree, to "feel her pain."   Harriet Beecher Stowe's book, Uncle Tom's Cabin, allowed readers to enter the world of slavery from a  slave's perspective and thereby to identify with, and feel correspondingly wounded by, his suffering and humiliation.  For this reason, the book and its author are widely credited with energizing anti-slavery forces in this country.  When we feel ourselves invested in the joy and the suffering of others, we are inspired to protect those others from violence.  When we instead focus our emotions exclusively on our own needs and desires, we feel indifference and perhaps even pleasure at others' pain.

Violence is still with us, of course, and Steven Pinker does not suggest otherwise.  The violence that occurs, moreover, continues to expose a failure of empathy.  When an authority figure, whether a parent or a teacher, beats a child, that beating exposes a lack of empathy (despite the self-serving and demonstrably false claims that physical violence against children is helpful to their development).  Instead of identifying with the child's terror and pain, the parent may instead be feeling rage at the child's defiance and perhaps even a desire to make the child suffer for making the parent's life more difficult.  The practice of routine violence against children was, not very long ago, widely accepted in law and custom.  In fact, some American colonial legislatures, through "stubborn child laws," condoned a parent's murder of unruly children, an act that signals a complete absence of empathy.  The fact that American laws now unequivocally criminalize child abuse and child murder speaks to our evolution away from the narcissism of "might makes right."

Unfortunately, the notion that "might makes right" is not dead, as we can see in the Court's summary reversal in Cavazos v. Smith.  The Supreme Court could have easily denied certiorari in this case, just as it does in almost 99% of the cases in which a party seeks review.  The case raised no new legal issue, and its denial would have taken far less of the Court's time than composing a per curiam opinion.  In addition, denying certiorari would have meant that a likely innocent who poses no threat to anyone could live in freedom.  But a majority of the Court could not tolerate the Ninth Circuit's defiance.  Acknowledging anemically that "[d]oubts about whether Smith is in fact guilty are understandable" the Supreme Court nonetheless (and far more animatedly) insisted that "the decision below [freeing Shirley Smith] cannot be allowed to stand."  To experience righteous indignation at the Ninth Circuit's defiance of authority while feeling nothing at the prospect of returning an innocent woman to prison is to display a profound and alarming failure of empathy far better suited to an earlier age.