Unfair (61 page)

The source of the problem is no secret:
Englich, Mussweiler, and Strack, “Playing Dice With Criminal Sentences,” 189.

It doesn't help that the evidence:
Englich, Mussweiler, and Strack, “Playing Dice With Criminal Sentences,” 189.

Judges are required, for example:
Vidmar, “The Psychology of Trial Judging,” 59.

While that fact may make:
Vidmar, “The Psychology of Trial Judging,” 59.

However, in two separate sets:
Andrew J. Wistrich, Chris Guthrie, and Jeffrey J. Rachlinski, “Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding,”
University of Pennsylvania Law Review
153 (2005): 1251–1345; Stephan Landsman and Richard F. Rakos, “A Preliminary Inquiry into the Effect of Potentially Biasing Information on Judges and Jurors in Civil Litigation,”
Behavioral Sciences and the Law
12 (1994): 113–26; Vidmar, “The Psychology of Trial Judging,” 59.

A similar dynamic is at work:
Englich, Mussweiler, and Strack, “Playing Dice With Criminal Sentences,” 188; Jeffrey J. Rachlinski et al., “Does Unconscious Racial Bias Affect Trial Judges?”
Notre Dame Law Review
84 (2009): 1195, 1221; Vidmar, “The Psychology of Trial Judging,” 59.

The investigators turned their attention:
The judges averaged 22.5 years of experience. Shai Danziger, Jonathan Levav, and Liora Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,”
Proceedings of the National Academy of Sciences
108, no. 17 (2010):
http://www.pnas.org/​content/​108/17/6889
.

Overall, these judges rejected:
Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6889.

An analysis of more than:
Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6889.

Moreover, factors like the severity:
Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6890.

The study's authors hypothesize:
Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6889. The status quo enjoys an unfair advantage across many
situations, especially when we face a difficult or complex decision. When we have doubt, we are inclined to stay the course, which can lead to erroneous decision-making and poor choices, whether that means sticking with your employer's default retirement package or failing to overturn the death sentence of a defendant. Stephen Fleming, Charlotte Thomas, and Raymond Dolan, “Overcoming Status Quo Bias in the Human Brain,”
Proceedings of the National Academy of Sciences
(2009): 6005, 6007,
http://www.pnas.org/​content/107/13​/6005
.

Repeatedly making decisions taxes our:
Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6889. Although the researchers didn't look specifically at whether it was the influence of eating or simply taking a break that explained the pattern, it seems that the judges' two daily food breaks had a restorative effect on their abilities to deviate from the norm. Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6889–92.

The two parole boards involved:
Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6889. After concerns were raised that the pattern of results might be the result of prisoners without representation being seen at the end of sessions, the authors of the study reanalyzed their data and replicated their original results, with case order and the timing of the break continuing to be robust predictors of the judges' decisions. Keren Weinshall-Margel and John Shapard, “Overlooked Factors in the Analysis of Parole Decisions,”
Proceedings of the National Academy of Sciences
108, no. 2 (2011),
http://www.pnas.org/​content/108​/42/E833
. The results also held up when the authors reran their analysis separating out rejections of parole from deferrals (both of which result in the prisoner staying locked up), which they had originally treated together. Shai Danziger, Jonathan Levav, and Liora Avnaim-Pesso, “Reply to Weinshall-Margel and Shapard: Extraneous Factors in
Judicial Decisions Persist,”
Proceedings of the National Academy of Sciences
108, no. 42,
http://www.pnas.org/​content/​108/42/E834
.

That's one of the reasons mental depletion:
John Tierney, “Do You Suffer from Decision Fatigue?”
New York Times
, August 17, 2011,
http://www.nytimes.com/​2011/08​/21/magazine/​do-you-suffer-from-decision​-fatigue.html?pagewanted=print&_r=0
.

And one of the most disheartening:
Uri Simonsohn and Francesca Gino, “Daily Horizons: Evidence of Narrow Bracketing in Judgment From 10 Years of M.B.A. Admissions Interviews,”
Psychological Science
24 (2013): 219-241.

In my Criminal Law course:
“Drexel University School of Law Student Handbook: Academic Year 2013–2014,”
http://​drexel.edu/​law/​studentLife/studentAffairs/​Student%20Handbook/
.

Researchers have dubbed this:
Simonsohn and Gino, “Daily Horizons,” 219.

According to this research:
Simonsohn and Gino, “Daily Horizons,” 223.

As the legal theorist and appellate:
Jerome Frank,
Law and the Modern Mind
(New York: Brentano's, 1930), 104. At the same time, we must remember the complexity of the task at hand. It is not that judges are slaves to their backgrounds and at the total mercy of unappreciated elements in their situations. Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 29. Judges do engage in careful deliberation and, in certain circumstances, do appear able to counteract certain erroneous intuitions. Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 29. For instance, there is some evidence that judges are capable of overcoming hindsight bias when they are encouraged to engage in a deliberative process. Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 28. In one research study, judges asked to determine the constitutionality of a particular car search
after
being informed that the police had found
damning criminal evidence in the trunk (the hindsight condition), were no more likely to find probable cause than judges who were presented with a comparable request for a telephonic warrant to search the same car not knowing what would be found inside (the foresight condition). Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 27. The authors of the study hypothesized that, in this special context, the Byzantine rule structures of the Fourth Amendment might have forced judges to deviate from their gut intuitions. Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 27.

More research is needed into how various psychological dynamics play out across situations and how they interact when more than one is implicated in a real life case. The circumstances in which bias can creep in are numerous and diverse because of the nature of judicial decision-making: it is not just about ultimate outcomes and punishments. Vidmar, “The Psychology of Trial Judging,” 58. Judicial bias can appear at any stage in a criminal case, from admitting evidence and signing off on plea bargains, to ruling on objections during cross-examination and approving jury instructions, to allocating time for oral argument during appeal and granting habeas motions seeking the release of a prisoner. Vidmar, “The Psychology of Trial Judging,” 58.

While some social scientists have:
As with judges, we've always assumed that the danger with referees is conscious bias: people altering their judgments in exchange for a bribe, out of spite, or after being threatened. The poster boy for the biased ref is Tim Donaghy, who bet on NBA games that he worked, as well as passing on critical information about referees and players to professional gamblers. Howard Beck and Michael S. Schmidt, “N.B.A. Referee Pleads Guilty to Gambling Charges,”
New York Times
, August 16, 2007,
http://www.nytimes.com/​2007/08/16/sports​/basketball/16nba.html​?ref=timdonaghy
. And leagues
have always been eager to portray bias by officials as rare and deliberate. Just as there are good, objective judges and bad, partisan judges, there are also good, objective referees who choose to adhere to the rules and bad, biased refs who choose to ruin the game for their own personal gain. According to this narrative, a handful of Donaghys in the system present the only threat: as former NBA Commissioner David Stern put it, “rogue, isolated criminal[s].” “Stern: Bet Probe ‘Worst Situation That I Have Ever Experienced,”
ESPN.com
, July 25, 2007,
http://sports.​espn.go.com/​nba/news/​story?id=2947237
. But this account does not hold up against the empirical evidence.

The findings are staggeringly similar:
See, e.g., Norbert Hagemann, Bernd Strauss, and Jan Leibing, “When the Referee Sees Red,”
Psychological Science
19 (2008): 769; Alexander Kranjec et al., “A Sinister Bias for Calling Fouls in Soccer,”
PLOS ONE
5 (2010): 1.

Tennis officials, for instance:
David Whitney et al., “Perceptual Mislocalization of Bouncing Balls by Professional Tennis Referees,”
Current Biology
18 (2008): R947–49. More broadly, umpires, like judges, believe they are seeing the game exactly as it happens through unfiltered lenses and they are rarely in a position to understand that their particular perspective and situation may influence their judgments.

The spot where an umpire perceives:
Whitney et al., “Perceptual Mislocation of Bouncing Balls.” A similar issue arises in soccer. Trained referees are taught to observe the game following a diagonal path across the field, and a referee using a left-diagonal system will observe players moving into the offensive side of the field from a right-to-left orientation, while his linesmen, traveling along the sidelines, will observe players moving left to right. Kranjec et al., “A Sinister Bias,” 1–3. Why might this matter? Scientists have discovered that experimental participants call more fouls when considering pictures of left-moving soccer tackles as when
looking at pictures of right-moving tackles. The likely reason has to do with familiarity: in the West, we read from left to right, and so things that occur right to left tend to be seen as atypical and disfluent. The end result is that, as with judges, a different perspective on the same events can lead to a different outcome.

White umpires give white batters:
Joseph Price and Justin Wolfers, “Biased Referees?: Reconciling Results with the NBA's Analysis,”
Contemporary Economic Policy
30, no. 3 (2012): 328, doi: 10.1111/j.1465-7287.2011.00268.x; Niels van Quaquebeke and Steffen R. Giessner, “How Embodied Cognitions Affect Judgments: Height-Related Attribution Bias in Football Foul Calls,”
Journal of Sport and Exercise Psychology
32 (2010): 14–15; Hagemann, Strauss, and Leibing, “When the Referee Sees Red,” 769.

Given that referees frequently have to make calls without all of the necessary information or in situations where the evidence that they have isn't conclusive, it is no surprise that they take cognitive short cuts just like judges. Robert L. Askins, “The Official Reacting to Pressure,”
Referee
3 (1978): 17, 18. Clearly, the fact that someone is a superstar doesn't tell you whether he just threw a ball or a strike; but when we don't know whether the pitch was inside or outside the strike zone, we may turn to the player's stardom to give us an answer: it was a strike. Tobias J. Moskowitz and L. Jon Wertheim,
Scorecasting: The Hidden Influences Behind How Sports Are Played and Games Are Won
(New York: Crown Archetype, 2011), 19–20. The result is that, on the mound, aces are given bigger strike zones than nonstars, and champion sluggers are less likely to get a third strike called on them than low-percentage hitters. Moskowitz and Wertheim,
Scorecasting
, 19–20. The same is true in basketball, where stars are less likely to receive additional fouls when they have gotten into early trouble than nonstars. Moskowitz and Wertheim,
Scorecasting
, 21.

Stranger and more troubling is the fact that white basketball referees appear to call relatively more fouls on black players than white players, and strike zones in baseball are partially defined by the race of the batter. Price and Wolfers, “Biased Referees?” 328. In one recent experiment, researchers found that although participants viewed black and white football players who “celebrated” after scoring as equally arrogant, black players were penalized for their actions at a greater rate. Erika Hall and Robert Livingston, “The Hubris Penalty,”
Journal of Experimental Social Psychology
48 (2012): 899–904. According to the study's authors, the likely explanation is that pride and arrogance are tolerated for those group members who possess high status (white players), but not for those with low status (black players). Black players face a “hubris penalty” that does not apply to their white counterparts. Much like with judges and police officers, racial cues seem to result in disparate treatment in sports, beyond the conscious awareness of the officials involved.

In addition, as with judges who expect:
Moskowitz and Wertheim,
Scorecasting
, 22–24; Kyle J. Anderson and David A. Pierce, “Officiating Bias: The Effect of Foul Differential on Foul Calls in NCAA Basketball,”
Journal of Sports Sciences
27 (2009): 692–93. Again, the irony is that the great effort a person puts into trying to be neutral and objective can itself create bias. In basketball, the erroneous assumption that the number of fouls called on each team should be approximately equal in a fairly refereed game subtly influences the actions of those who are strongly motivated to appear fair. The larger the difference in fouls between two opposing basketball teams, the more likely the next whistle will be blown against the team with fewer fouls. Anderson and Pierce, “Officiating Bias,” 692–93. Whether it's three fouls on the same team or three parole grants in a row, deviation from a preconceived vision of the pattern of objectivity sets off internal alarm bells, even though unequal distributions are statistically
predicted. When an umpire or referee makes a clear mistake, the motivation to even things out becomes even stronger. So, investigators have found that when umpires erroneously call a strike a ball, they are more likely to call the next pitch a strike. Moskowitz and Wertheim,
Scorecasting
, 22–23. Make-up calls are real, although, for many officials, they do not feel that way at all.