Unhappy judges, unlucky defendants

Are judges all Solomons, paragons of reason

and unbiased virtue? Certainly not. Members of the judiciary, like the populations they judge, are riddled with all manner of prejudices regarding race, sex, and age. But could trivialities like a favourite football team losing a match really affect a judge’s decision-making? Yes, according to a September research paper

from the US National Bureau

of Economic Research.

In ‘Emotional Judges and Unlucky Juveniles’, economists Dr Ozkan Eren and Professor Naci Mocan analysed juvenile court cases in Louisiana between

1996 and 2012 and found there to be a correlation between

the sentencing of first-time offenders and the performance of Louisiana State University’s American football team,

the Tigers.

On the day following an unexpected defeat for the

Tigers, the average prison term imposed by Louisiana judges was 7 per cent longer than on the day after a win or expected loss for the college team.

The Tigers-effect was most pronounced among judges

with a bachelor’s degree from Louisiana State University.

Significantly, games that did not involve the Tigers had no impact on jail terms meted out by the 207 judges in the sample. The ‘emotional shock’ of each unanticipated loss ultimately led to 552 extra days of jail time being handed down to Louisiana’s young offenders.

Troublingly, African-American defendants were more likely to be sent down for longer periods when the Tigers failed to score

a touchdown. Eren and Mocan, however, assure readers that their results ‘were not influenced by defendant or attorney behavior [sic] or by defendants’ economic background’.

Although a judge’s ‘application of relevant legal principles to

the facts of a case’ ought to ‘eliminate arbitrary and capricious decision-making’,

the economists’ Freakonomics-like findings’ provide evidence for the impact of emotions

on decisions’. A correlation (or bizarre coincidence) is not, however, proof of causation. Yet Eren’s

and Mocan’s study is not the

only empirical evidence of

the influence of unusual factors on legal judgments.

In 2011, Israeli researchers found that a hungry judge is likely to become a ‘hang-

’em-and-flog-’em’ judge. In ‘Extraneous Factors in Judicial Decisions’, Professor Shai Danziger et al concluded that

the ‘common caricature’ of legal realists that ‘justice is “what the judge ate for breakfast”’ was,

in fact, true.

The researchers found the percentage of favourable parole rulings made by judges dropped gradually from around 65 per cent to nearly zero in the lead-up to a lunch break and abruptly returned to around 65 per cent after the break. Danziger and

his colleagues appear to have proven the truth of 18th-century poet Alexander Pope’s couplet: ‘The hungry Judges soon the Sentence sign,/ And Wretches hang that Jury-men may Dine’.From the belly to the grave: further evidence of the arbitrary and capricious influences

on forensic decision-making suggests that meditations on death might make a judge harsher.

In a 1989 paper with the unwieldy title ‘Evidence for

Terror Management Theory: The Effects of Mortality Salience on Reactions to Those Who Violate or Uphold Cultural Values’, Abram Rosenblatt and his fellow researchers reported that judges who had been reminded of their own mortality before being presented with the case materials of a woman arrested for prostitution set significantly higher bail bonds than those who had not been asked to contemplate death.

So, should lawyers now abandon rhetorical excellence, shred their copies of Richard Du Cann’s The Art of the Advocate and Francis L Wellman’s The Art of Cross-examination, and simply ensure that judges are well-fed, not shown any pictures of skulls before hearings, and support a winning local team?

For Andreas Kapardis, author of Psychology and Law: A Critical Introduction, the outcome of research like that conducted

by Danziger and others does

not ‘justify the conclusion that judicial decision-making

can be explained largely by frivolous factors’. To be on the safe side, though, get your case called on after lunch, preferably on a day outside the football season.

Richard Easton is a solicitor at Sonn Macmillan Walker @SMW_Law www.criminalsolicitor.co.uk