A Judge’s Breakfast

Legal Realism has been caricaturised as a school that believes that judicial decisions are made according to what the judge has had for breakfast. Research conducted in Israel suggests that this may not be so far from the truth.

The research, by Danzigera, Levavb, and Avnaim-Pessoa, examined the impact of a number of factors including recidivism, seriousness of offence, time served, and availability of rehabilitation on prospects of a favourable parole decision. Surprisingly, the most significant factor was how soon after the start of a session a case was heard. The judicial day is broken into three sessions by a mid-morning break and a lunch break. The statistics showed a remarkable and steady decline in the prospects of a favourable decision from around 65% at the start of a session to almost 0% at the end of a session. The cases were heard at random with the judges having no prior knowledge of the case files.

If the research stands up to scrutiny, this is clearly a serious problem. The process is both arbitrary and grossly unfair. So what can we do about it?

The target of Legal Realism was Formalism, a belief that the decisions of the courts followed inexorably from established legal principles. Of course, the truth lies somewhere between Realism and Formalism. However, there are circumstances where judicial decisions can be particularly unpredictable. One important factor is how effectively the legal principle can prescribe the circumstances in which it is to be applied. For example, if a law states that those aged under 10 cannot be held legally responsible for their actions (the doli incapax rule) there is likely to little serious disagreement about its application. As a result, if it is judicially misapplied, it can be appealed, and if it is not a good law, it can be repealed or amended. By contrast, other circumstances are much more difficult to prescribe and are left to the discretion of the decision maker. Examples include provisions requiring the judge to assess obscenity, reasonableness, proportionality, dangerousness, or risk. The parole context often raises a number of these issues. In these cases it is often hard to review the exercise of discretion without rehearing the case, which is of course problematic (what guarantee is there that the second judge will be any more effective?). The difficultly is compounded by the fact that even the judges (as in the present case) are unaware of the factors that affect how they exercise their discretion. There therefore is huge scope for arbitrariness in some categories of judicial deliberation.

The authors view the findings from a perspective of “mental depletion,” with the progress of the session resulting in an increasing status quo bias. However I would go further and query whether the exercise of the judges’ discretion bears any relationship to the factors that they are supposed to be considering. It may be that early session decisions are just as arbitrary in relation to the factors the judges are supposed to assess (albeit more favourable to the prisoner) as late session decisions. This would require a much more extensive study of the long-term consequences of parole decisions. Such a project might identify ways of making judges more sensitive to the relevant predictive factors or even that there are altogether better alternatives to judicial parole hearings.

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3 Responses to A Judge’s Breakfast

  • Peter Wicks says:

    I'm inclined to agree that "mental depletion" leading to bias in favour of the status quo isn't a very convincing explanation; a more plausible one might be that mental depletion putsthe judge being in a worse mood and thus more inclined to take a tough line.

    If true, this will presumably apply to judicial proceedings more generally, in which case it certainly seems to shift the weight of evidence from formalism to realism, suggesting that judicial proceedings are indeed less objective – that is to say less just – than we might like to think. Obviously this doesn't mean we should lose all faith in then legal system, but it does suggest that more checks and balances need to be introduced, and that decisions of judges should be considered less final than is currently the case.

  • Arif says:

    What an interesting study! Thank you for bringing it up for discussion.

    The consequences of accepting realism intuitively seem more dangerous to me than maintaing a fiction of legal formalism.

    The mental depletion model, however, seems to support legal formalism so perhaps the researchers feel the same way! After all, if it is just a matter of ensuring judges are not tired and hungry to ensure they keep putting their minds to reaching optimal decisions, then all is well.

    If it is more to do with mood (as you both suggest above), then it is more awkward to work out what would be the optimal mood for fair judgments, how it should be measured and maintained. And what does it say about our own day to day judgments – are we more charitable to people around us after a meal, and can our blood sugar levels be affecting our interpersonal relationships more than we realise?

    But I think it is more to do with attention levels (the mental depletion model), just going along with the unscientific cliches about how much less alert people are at conferences and lectures, for example, just before lunch and towards the end of the day.

  • Paul Troop says:

    I guess there are at least two distinct issues. There are certain to be some benefits to maintaining a legal fiction. The prospect of facing a Parole Board would motivate a prisoner to take up such opportunities are available to demonstrate rehabilitation. Belief that the process is random would significantly undermine that motivation.

    But that shouldn’t distract us from examining some more fundamental issues. Liberty is a very precious thing and I therefore don’t think we should make any assumptions about the causes of these surprising trends. For those not so concerned about rights, the huge cost of keeping a prisoner incarcerated is another factor that would justify close scrutiny of what happens at parole boards.

    Arif, I agree that it is a possibility that judges get tired and don’t pay attention as sessions drag on. Equally, however, judges can’t just doze off as some conference participants might do – they have to produce some semblance of reasons for their decisions. What is also interesting is that decisions show a progressive tendency towards the default position of refusing parole.

    My real concern is that if none of the participants have any idea that the process is so affected by arbitrary factors, how confident can we be that they are predictive to any extent? Predicting risk is not easy, and it’s difficult to assess whether a judge is any good at it. Of course a prisoner who is refused parole doesn't get the chance to show that he or she has been rehabilitated. It could be that the judge’s predictions are little better than chance. If so, a better approach might be to examine what factors are predictive and whether judges can be sensitised to these factors, rather than how long it has been since breakfast.


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