New Research Suggests Justice Really Is What The Judge (And Jury) Had For Breakfast. So What Do We Do About It?

judge picture.jpgWe’ve all heard the old adage, “Justice is what the judge ate for breakfast.”
The maxim is actually attributed to a famous jurist – Jerome Frank – but I’ve always tended to write it off as overly cynical. Judges, at least here in Massachusetts, are among the most competent and conscientious of public servants. By and large, they take other people’s problems, other people’s dilemmas and handle them with as much care as they would their own.
But some new research is suggesting that there may be a lot more truth to that old saying than we may be comfortable acknowledging. (H/t Andrew Sullivan). According to a recent article published by a couple of Israeli psychology professors, judges deciding whether to grant inmates parole start off the morning (when presumably they have just had their breakfast) very generously: they grant parole to approximately two-thirds of the inmates to come before them. As lunchtime approaches, however, the judges grant virtually no inmates parole.
When the judges return to the bench after lunch, they start out again by granting parole to two-thirds of the inmates they see. And the numbers decline from there, as the judges’ stomachs empty.
The graph of this phenomenon (below) is astonishing.
Was it really the judges’ stomachs that were driving decisions? The study’s co-authors, Shai Danzinger and Jonathan Levav, managed to rule out a number of alternative hypotheses. The same pattern applied regardless of the judges’ personal philosophies or the racial and ethnic makeup of the prisoners before him. Nor was it the case that the judges had some sort of unconscious “quota” of the number of prisoners to whom they would grant parole, and once that number was up, they denied parole; some careful analysis disproved this possibility.
The only readily apparent remaining theory is that judges were less inclined to leniency as their stomachs began to growl.
And it’s not just the judges who are human, all too human. A couple of weeks ago, David Brooks wrote about research suggesting that people given bitter tasting drinks were more likely to judge moral transgressions harshly than people given sugary drinks. (H/t Althouse). As Brooks pointed out, one upshot of this research is that perhaps criminal defense lawyers should strive to make sure that Coca-Cola gets served in the jury room.
So should we be doing anything to combat the effects of food and drink on our powers of justice dispensation? Well, most judges already do something that might mitigate the effects of their appetites on their decision making: they tend to take their rulings “under advisement” and issue them at a later date, after an opportunity for further consideration. Judges making snap decisions, the way Israeli judges apparently do with potential parolees, is relatively rare outside of a trial, where judgments necessarily have to be made on the fly. Of course, if this “hunger effect” is so pervasive, it might just wind up shifting the disposition of a case to a time when a judge is even hungrier.
Another thing we might want to consider is letting judges and jurors snack in open court. In recent years, we’ve seen a lot of judges allow jurors to do things that a generation ago were frowned upon – such as letting jurors pose questions of witnesses for clarification purposes and other innovations.
But jurors are not allowed to snack in any courtroom that I know of. Partly this is a matter of decorum: when a defendant’s life is on the line, or a child’s future medical expenses are at stake, we want jurors to take their job seriously, and it does not really seem to comport with that notion to have them popping Cheez-Its instead of listening intently to trial.
Maybe we should experiment with this though. And make sure our judges have personal chefs as well as law clerks.

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