The Right to Look Your Judge in the Eye
Last month a Michigan appeals court considered the case of a man convicted of methamphetamine possession. Although the man received an unusually harsh sentence (30 to 120 months in prison, based in part on his prior record), the decision of the three appellate judges addresses not only the length of the sentence but also, and at greater length, the way it was delivered: via videoconferencing. The defendant was in the county jail when he was sentenced; he never shared a courtroom with the judge who determined his fate.
On a basic legal level, the court noted that Michigan law specifies when you can sentence via videoconferencing, and it’s not an option in felony cases. But the appeals court’s decision raises deeper philosophical issues. The three appellate judges provide a stirring defense of the antimodern belief that human dignity inheres not solely in the mind or the will, but in the body.
A defendant already has the right to be present at sentencing. As the judges note, “Our court rules and common law invest sentencing with profound significance, for this grave moment in the criminal process often seals a defendant’s fate or dictates the contours of his future. … A defendant’s right to allocute before sentence is passed—to look a judge in the eye in a public courtroom while making his plea—stems from our legal tradition’s centuries-old recognition of a defendant’s personhood, even at the moment he is condemned to prison.”
The Michigan decision, though short, frequently returns to the language of human dignity. The appeals-court judges intuit that acknowledging the personhood of the defendant and his intrinsic dignity requires his physical presence. But why would the body be the necessary locus of human dignity? Why isn’t the man’s voice and image, far away and mediated by a screen, enough to remind a judge of his humanity?
Our bodies can humiliate us, especially when we confront power. Most of us have had the experience of trying to plead our case and realizing that we’d be more persuasive if we could just have a quick shower and a change of clothes. When we confront other human beings in our bodies we risk provoking not empathy but disgust.
Our bodies represent weakness—but this weakness is what allows them to signify our equality. At the very least, the body reminds us of the universal weakness of mortality. Recognition of weakness plus recognition of commonality provokes mercy.
A defendant has the right to address his judge at sentencing, but speech is as likely to display his inequality with his judge as his human equality. A defendant who is more educated, more intelligent, more articulate, or just less of a jackass is more likely to paint a compelling picture of himself in speech—but uneducated, unintelligent, inarticulate jackasses have exactly as much human dignity as the best among us, simply because they are human individuals.
All men are not created equal in intellect, in temperament, or in freedom of choice. But all of us share the body’s fevers and its final silence. This recognition that human equality is found in the brute fact that we are individual, embodied human beings drives the pro-life movement: before we’re even capable of thought, our mute bodies speak our dignity and our infinite worth.
Liberalism tends to treat the body as an instrument of the will; the Michigan case makes little sense unless you acknowledge that the body is an icon. Plenty of commentators, from Jonathan Haidt to Paul W. Kahn, have noted the difficulty liberalism has in grappling with the sacred. The sacred is not defensible in terms of utility, efficiency, rationality, safety, or choice. Videoconferencing wins on all of these grounds except—and this one exception applies only if you are willing to take the prisoner’s perspective and not the judge’s—choice. (Even a prisoner’s safety may not be best served by in-person sentencing, for reasons that are shameful.) In the gaze of the defendant the judge encounters a human dignity and equality that go beyond what rationalistic discourse can prove; they must be experienced. Like all sacred things they must be submitted to rather than comprehended.
“The right to look your judge in the eye” is an attempt to put into words something of that irreducible encounter. The judge has a “duty to acknowledge the humanity of even a convicted felon,” the court says: to recognize him- or herself in the eyes of the defendant.
A screen has its own symbolism, as the appellate-court decision notes. Screens do not only allow physical separation. (The Michigan defendant was sentenced without ever leaving jail or breathing the same air as his judge.) They also place a frame around the face. They suggest that the person being viewed has become a character: a type, even a concept in the mind of the one viewing him. Videoconferencing can turn a man into a kind of moving mug shot. Harold Garfinkel argues that “successful degradation ceremonies”—such as trials—reduce the individual to a type, and define him by his membership in an out-group.
And so defendants stand in court, and judges must meet their gaze—it’s intensely difficult to meet the eyes of someone you’re being asked to judge—in order to unsettle the judges, in order to remind them that their judgment is merely temporal and provisional.
The Michigan case, and the reasoning behind it, should also affect how we view the increasing use of videoconferencing in other criminal-justice settings, especially prison visits. Videoconferencing is increasingly used as an alternative to in-person prison visits—some prisons have banned in-person visits entirely. The inflated costs of the new technology, as always, are borne by the loved ones of the prisoner. Videoconferencing is better than nothing, and having it as an option makes sense; but as the Michigan decision notes, quoting an earlier case, “virtual reality is rarely a substitute for actual presence.”
This decision helps explain why we should make real, in-person visits easier and resist the attempt to restrict prisoners’ contact with their loved ones to a screen. All humans need, on the very lowest level of need where we choose between despair and hope, to be physically in the presence of someone who loves us. Who treats us with tenderness and not contempt, for whom we are an individual and not a numbered case.
The willingness to share physical space with someone, to confront them in person and meet their gaze, can be profoundly humbling. The unwillingness to do this–the use of power to prevent it—is always dehumanizing. This is part of what it means to be human: to keep body and soul together.
Eve Tushnet is a TAC contributing editor, blogs at Patheos.com, and is the author of Gay and Catholic: Accepting My Sexuality, Finding Community, Living My Faith, as well as the author of the newly released novel Amends, a satire set during the filming of a reality show about alcohol rehab.