Most people hate making decisions. From choosing which over-crowded highway to take to work to buying a new home, decisions can fill us with varying degrees of stress and unease. Yet where the rest of us would rather cut down on the number of decisions we have to make, trial judges choose to make decisions for a living, and that intrigues Jeffrey J. Rachlinski, Law.
“The entire job of a trial judge is decision making,” he says. “They make one decision after another about people’s lives: Are they guilty, are they innocent, should they get a monetary award, how much should the award be? I’m applying the latest thinking about the psychology of judgment and decision making to judges. When they are making decisions in the court room, are they using the same cognitive and mental strategies that ordinary people use to make decisions?”
For the last 18 years, Rachlinski has collaborated with Andrew J. Wistrich, magistrate judge of the United States District Court for the Central District of California, and Chris Guthrie, dean of Vanderbilt Law School, on a series of projects. The researchers regularly attend judicial education conferences in the United States and Canada where judges gather for mandated training each year. At the conferences, the judges answer questionnaires that ask them to make judicial decisions on cases created by the researchers. The judges are provided with all the precedent and legal information they need to rule on a case, but half of them will receive one version of the fact pattern and the other half will receive another.
From Search and Seizure to Interpreting a Medical Marijuana Law—Studying Decision Making
In one study the judges were asked to decide whether a motion to suppress evidence in a search and seizure should be granted. The only thing that was varied between the two groups of respondents was the nature of the contraband. In one case it was two marijuana cigarettes. In the other it was $36,000 worth of heroin and a contact list at a local high school. “To a trial judge what the contraband was shouldn’t matter,” Rachlinski says. “The facts associated with whether it was legal or not have to do with the circumstances surrounding the search, all of which happened before the police knew what the contents were. But it turns out the nature of the contraband mattered quite a bit to the judges. The heroin was much more likely to get admitted as evidence than the marijuana.”
“When they are making decisions in the court room, are they using the same cognitive and mental strategies that ordinary people use to make decisions?”
In another study judges were asked to interpret a medical marijuana statute that the researchers had created for the purposes of the study. The statute said that citizens can’t be prosecuted for marijuana possession if they have an affidavit from their doctor saying the pot was for medical purposes. The statute did not say whether the person had to have that doctor’s affidavit at the time of arrest or whether they could obtain it after the arrest. Half the judges in the study were asked to rule on a 19-year-old defendant who had been convicted of armed robbery and had recently been arrested for beating his girlfriend and who claimed the marijuana was for seizures. The other half were presented with a 55-year-old defendant dying of bone cancer who had never before been arrested.
The judges clearly showed that aspects of the case influenced their assumed impartiality. “When the 19-year-old was the defendant, about half decided the statute meant that he could not get the affidavit after the arrest,” Rachlinski says. “When it was the 55-year-old, it was a different matter. In fact, in New York 100 percent of judges said the guy should be allowed to go home.” The ruling on this case was particularly important to judges because once that statute is interpreted a certain way, precedent is set.
“If the first case ruled on is the 55-year-old and the next case is the 19-year-old, the 19-year-old gets the benefit from the ruling in the first case,” Rachlinski says. “It matters who goes first.”
How Numbers Influence Decisions
Rachlinski and his collaborators also looked at the effects on judges of anchoring—people’s tendency to rely too much on numerical reference points when making a decision. One study asked judges to rule on a nightclub that had broken a noise ordinance. The judges were told the nightclub was named after its street address. For half of them, that name was Club 55; for the other half, it was Club 11866. “The fine was three times higher when the name of the establishment was Club 11866,” Rachlinski says.
As they continued investigating the effects of anchoring, the researchers found some particularly troubling results when they asked judges to sentence two prisoners whose crimes warranted different amounts of prison time. One prisoner’s crime should have gotten him about a year in prison and the other, nine years.
“When they sentenced the one-year prisoner first, they gave the second prisoner six years instead of nine,” Rachlinski says. “Because they had just sentenced someone to one year, nine years seemed like a lot, so they lowered the sentence for the second prisoner. When we reversed the order with a different group of judges, they sentenced the nine-year prisoner first, and then they gave the one-year prisoner two years because one year didn’t seem like enough. The numbers anchor on each other.”
The Human Factor
Results like these show that judges are as human as the rest of us. “We have a judicial system run by humans, and humans have predictable flaws,” Rachlinski says. “Humans make decisions in two ways—either intuitively going with a gut feeling or deliberatively, using the application of rules and logic. Our results show there is a lot of intuitive decision making going on in the judicial system. Judges underrate or don’t understand that when we make a decision using our gut, we feel good about it, but that doesn’t mean it’s the right decision. People are very confident when they don’t think carefully.”
Judges are disturbed when these types of biases and mistakes are pointed out to them, Rachlinski says. As a group they believe in their professional obligation for impartiality. To help them deal with their own human tendency toward these types of mistakes, Rachlinski and his collaborators have a number of suggestions. One is to be more deliberative.
“There are different ways to do that,” Rachlinski says. “We suggest they take a moment and have the lawyers argue both sides of the issue quickly before them. This forces them to deliberate because they have to compare the two arguments. Or if it’s possible, they can also take a break. We say, take 10 minutes if you feel you’re getting too intuitive.”
Rachlinski is delivering his message to judges one judge at a time as he speaks at judicial educational conferences in the United States and Canada and gives his questionnaires to attendees. “So far one-fifth of the trial judges in America have heard me speak,” he says. “It might take me 70 years, but I’ll get to the rest.”