Tuesday, August 03, 2021

Have Zoom sentencings helped or hurt defendants?

 Over the past 16 months or so, most federal sentencing hearings have been conducted via Zoom.  Sure, some judges have conducted in person sentencings.  But mostly, it’s been over a video screen.  At first, many defense lawyers objected and said that it would be hard to get a fair sentencing over Zoom.  How could you really humanize your client over the computer.  But then it became clear that with some judges, sentencing over Zoom during COVID resulted in a lower than usual sentence.  

It would be really interesting to see the stats for sentences during the pandemic.   And if the sentences were generally lower, was that in spite of video screens (and mostly due to not wanting to burden prisons with long sentences during the pandemic) or is Zoom a more effective way to make a sentencing presentation?

Here’s an interesting article about empathy and video screens, by Susan Bandes and Neal Feigenson: Empathy and Remote Legal Proceedings, 51 Southwestern Law Review Issue 1 ( (Symposium on Courts in the COVID-19 Era). Forthcoming December, 2021.

From the abstract:

Do remote legal proceedings reduce empathy for litigants? Pre-COVID studies of remote bail hearings and immigration removal hearings concluded that the subjects were disadvantaged by the remote nature of the proceedings, and these findings are sometimes interpreted to mean that decision-makers tend to be less empathetic toward remote litigants. Reviewing both the pre-COVID literature and more current studies, we set out to determine whether empathy is reduced in virtual courts. The notion that it is more difficult for decision-makers to exercise empathy toward someone they encounter only on a video screen is consistent with findings that physical distance increases social and hence psychological distance, and may well be borne out by further research. However, while there are reasons to suspect that the exercise of empathy may be altered on Zoom or comparable platforms, thus far there is no firm evidence that the remote nature of legal proceedings, in itself, reduces empathy for litigants, witnesses, or other participants in legal proceedings. On the other hand, there are ample grounds for concern that remote proceedings may further disadvantage litigants who are already unequally burdened by empathy deficits based on race, social class, gender, ethnicity, or other factors that may differentiate them from decision-makers. We call attention to particular ways in which virtual proceedings may exacerbate these empathy deficits.


Anonymous said...

I had a sentencing for an indigent defendant in SDFL and believe the Zoom forum provided a tremendous benefit, allowing out-of-state family members to participate and speak remotely. They never could have afforded the travel to Miami for an in-person hearing. The judge interacted with them in an informal way that I had never seen in court, and I believe that made a significant difference in obtaining a favorable sentence.

Rumpole said...

2 examples. One on zoom in February. 30 months down from a government ask for 72 I chalk part of it (say from 48 months which is what I thought he would get to 30 because of COVID in general ) and one in person much different circumstances but 140 months down from 240 ask. Each hearing had its benefits and drawbacks. I’m comfortable with either proceeding. Probably the best way to view it is the more serious and complicated the issues the easier it is in person. The one I did on zoom was a standard fraud thing nothing to make it unusual or super serious.

Anonymous said...

Hi rump was the 240 to 140 a remand? May have seen it.