Rick Perry’s proud statement that he doesn’t lose sleep over the execution of over 220 people in Texas, in the face of damning evidence about the Justice system in his state, raises some questions about how judges make decisions. Listen to the “strict constructionists” legal scholars and you’d think that judges, including our supremes, examine the case before them in a strictly dispassionate, rational, mechanical and deliberative manner. So how is it that in almost all decisions the Supreme Court justices split along ideological lines? Or consider the upcoming execution of Troy Davis who was convicted in 1991 of murdering a police officer despite the fact that of nine witnesses seven recanted their testimony, claiming that they were pressured by the police to implicate Davis?
Or that no DNA or a weapon or any other evidence was presented? You can’t escape the impression that something other than “strictly dispassionate, rational, mechanical and deliberative” was at play here. The police officer was white, the judge was a Southern conservative, and Troy Davis? A high school honor graduate, and unfortunately for him –black.
If you suspected that ethnicity played a role in rendering “justice”, now we have empirical evidence to prove it. Shayo and Zussman, Israeli researchers, published in the Quarterly Journal of Economics an interesting study. They studied ingroup bias—the preferential treatment of members of one’s group—in a judicial system. Data came from Israeli small claims courts during 2000–2004 and the cases were typically of the fender-bender and traffic accidents type, in which the plaintiff and defendant were of different ethnicities. The assignment of a case to an Arab or Jewish judge is effectively random. They found robust evidence for judicial ingroup bias: Jewish judges favored Jewish plaintiffs and Arab judges favored Arab plaintiffs. Interestingly, bias of both Jewish and Arab judges became even more pronounced if the case was in geographic or temporal proximity to terrorism. Furthermore, the “intensity” of the terrorist act had an almost quantifiable effect on the ruling: the more civilian casualties, the more pronounced the bias.
In another study, also from Israel (why are they so preoccupied with the impartiality of justice over there?) Danziger and his colleagues from Ben-Gurion University of the Negev (Proceedings of the National Academy of Sciences, April, 2011) tested the “common wisdom” that justice depends on “what the judge ate for breakfast”. They examined sequential parole decisions made by experienced Israeli judges. They recorded the judges’ two daily food breaks, which result in segmenting the deliberations of the day into three distinct “decision sessions.” What they found is surprising even to old cynics: the percentage of favorable rulings dropped gradually from ≈65% to nearly zero within each decision session and returned abruptly to ≈65% after a break.
So here we have 2 studies that actually quantify the effects of politics, ethnic bias, and even physiology, on the decision making of judges.
Is this surprising?
Of course not. Only legal scholars who never left the law library believe that justice is strictly legal. The Greeks and the Romans had no illusions on the subject. In their depiction of Themis, the Greek goddess of divine justice she is holding a balance in one hand and a sword in the other. The latter symbolizes vengeance, not exactly an attribute of deliberative dispassion.
I suppose that wearing the mantle “strictly by the book” gives some judges the intellectual and psychological cover for handing down rulings that fly in the face of our most basic notions of fairness. Executing somebody because his lawyers were 30 minutes late in filing an appeal (Texas, again) is a case in point. Southern Justice has now become a cliché, a symbol for warping the written word of the law to the point of blatant injustice.
All this is quite expected; ethnic bias harks back to our very beginnings as human beings. Tribalism, our sense of belonging to the family unit, the extended family, the tribe, and the nation –has been with us since time immemorial, and originally had a survival value. Can you trust the approaching alien when food resources are limited? It is dog-eat-dog world, and you’d better be on guard, or die. But as history marched on and societies evolved, this sense of ingroup loyalty and outgroup hostile suspicion got us into a lot of trouble. And the justice system did not escape it, because judges are…human.
What can we learn from the second study? How can judges be ruled by their stomach? Simple –they are human. When we are hungry certain hormones are secreted by the GI tract. One of them, ghrelin, is secreted by the stomach and travels to the brain to signal an empty stomach. Other, like PYY, an intestinal hormone, signal satiety. High levels of ghrelin and low levels of PYY
put the brain in a, well, pretty ugly mood. We can’t help it –we are hard-wired for it. So those experienced judges who ruled on the parole cases –they are not inherently mean, they are just human. As long as we acknowledge this obvious shortcoming, we could ameliorate it by education and awareness. The problem arises when judges pretend to be unbiased, immune to external influences, “strict constructionists”. This is intellectual hypocrisy; those judges and justices are learned people, they know the truth. They just elect to deny it.
In practical terms, there is a solution. If you have the misfortune to appear before a judge, make sure he had a good breakfast. And if your case is scheduled for late in the morning or late in the afternoon, have a pizza delivered to the judge. I am sure you’d both be happy for it.