Australia
Bagaric, Mirko, ‘Sentencing: From Vagueness to Arbitrariness: The Need to Abolish the Stain that is the Instinctive Synthesis’ (2015) 38(1) University of New South Wales Law Journal 76.
In this article, Bagaric argues that the instinctive synthesis approach to sentencing results in arbitrary decision making in courts. He quotes from Kirby J in Markarian v The Queen [2005] HCA 25:
‘With all respect to those of the different opinion, the phrase ‘instinctive synthesis’ sends quite the wrong signals for the law of sentencing in Australia. Who are those who have the ‘instincts’ in question? Only the judges. This is therefore a formula that risks endorsement of the deployment of purely personal legal power. It runs contrary to the tendency in other areas of the law, notably administrative law, to expose to subsequent scrutiny the use of public power by public officials. It is contrary to the insistence of Australian courts, including this Court, that judicial officers must give reasons for their decisions. At this stage in the development of the Australian law of sentencing, this Court should be encouraging, not impeding, transparency and accountability of judicial decision-making. I remain of the view that ‘[i]t is too late (and undesirable) to return to unexplained judicial intuition’. Talk of ‘instinctive synthesis’ is like the breath of a bygone legal age. It resonates with a claim, effectively, to unexplainable and unreviewable power’.
Bagaric explores recent empirical research that shows that judges may be influenced by considerations of which they are unaware, including race, sex and income.
Easteal, Patricia, Lorana Bartels and Reeva Mittal, ‘The Importance of Understanding the Victims’ ‘Reality’ of Domestic Violence’ (2018) Alternative Law Journal.
The authors argue that unconscious assumptions may filter out the diverse experiences and ‘realities’ of domestic violence victims. This is particularly evident in the differences between the court’s perceptions of domestic violence, and the victim’s experiences of it. Despite legal and policy reform, these assumptions may continue to affect how relevant legislation is applied and interpreted. The authors consider a small sample of recent Queensland domestic violence order breach cases to underscore the systemic failure in recognising the seriousness and harm of psychological or mental abuses (i.e. the victims’ ‘reality’ of domestic violence), and the lack of understanding of the long-term effects of domestic violence on its victims. The authors conclude that sentencing for domestic violence offences and breaches of protection orders should be underpinned by knowledge of the long-term effects of emotional abuse. Further, an analysis of Queensland cases indicates that the Benchbook is not always applied consistently. Consequently, the authors suggest the creation of a report that particularises the specific issues in each individual case in order to enhance the knowledge of judicial officers and other stakeholders, and to adjust their lenses so they can better understand the victim’s perspective.
Hamilton, John P, ‘Judicial Independence and Impartiality: Old Principles, New Developments’ (Paper presented at South Pacific Judicial Conference, 28 June to 2 July 1999).
This paper discusses aspects of judicial independence generally. The Honourable Justice Hamilton briefly examines the modern concept of judicial independence and considers a number of recent issues concerning the independence of judicial officers. Most relevantly, this paper deals briefly with the issue of judicial dismissal and complaints made against the judiciary. In 1997-1998 the Judicial Commission of New South Wales’ found that: ‘The most common ground of complaint involved apprehension of bias, failure to give a fair hearing or conduct which was said to display hostility to discourtesy towards the complainant. In the period under consideration a high proportion of complaints alleged that the judicial officer in question unfairly or improperly prevented the losing party to litigation from properly putting his or her case, or favoured the winning party’ (p.10).
His Honour further notes: ‘As in past years, a high proportion of complaints arose out of applications for apprehended violence orders. This is not surprising, as these proceedings usually involve emotional stress and frequently one party is not legally represented. Sometimes both parties are unrepresented. Judicial officers who deal with these applications are obliged to behave in an impartial manner, but this is sometimes construed as a failure to show appropriate concern for the situation of one of the parties. As a result, this form of litigation generates many complaints to the Commission’ (p.10).
Mason, Keith, ‘Unconscious Judicial Prejudice’ (Paper presented at Supreme and Federal Courts Judges’ Conference, January 2001).
This speech is available at pp.240-249 of the document. His Honour explores ‘the impact of unconscious prejudice upon judicial decision-making in law and fact’. In the paper Justice Mason examines different types of bias and prejudice.
He considers heuristic illusions: ‘The study of "cognitive heuristics" has revealed judgmental rules of thumb that we use to simplify complex and uncertain tasks. Some heuristics are demonstrably valid in some circumstances, but in many circumstances they lead to systematic error or bias. The term "cognitive illusion" is often used to describe these inferential shortcomings. Psychological studies reveal illusions such as: hindsight illusion, overconfidence concerning one’s own judgments and predictions, false-consensus bias, and framing bias’ (see article for a more detailed description of these) (p.7).
Compensatory bias: where a judge may have leant too far in the opposite direction to avoid the actuality or appearance of prejudice in a particular direction (p.8).
Justice Mason concludes asking ‘what is to be done?’ He makes the following suggestion: ‘Come clean about the role that [unconscious prejudices] actually play both in the grand design and in the exquisite details of our legal structure. Get real about the hard work that it takes to redeem the promise of those concepts’ (p.8).
Pagone, GT, ‘Centipedes, Liars and Unconscious bias’ (Speech delivered at Melbourne University Law School ‘JD Guest Lecture Series’, Melbourne, 7 April 2009).
Pagone writes that, ‘[a]n important element at play in faulty decision-making is the unconscious bias that we bring with us when making any decision…The mental process by which we ‘find’ new facts, knowledge or information (that is, heuristics), is affected by many illusions, preconceptions, biases and error. Often we rely upon certain facts to ‘anchor’ our decision, which controlled studies suggest can have greater influence than is independently justified’ (p.8).
International
Casey, Pamela M et al, ‘Helping Courts Address Implicit Bias: Resources for Education’ (National Center for State Courts, 2012).
‘[A]lthough courts may have made great strides in eliminating explicit or consciously endorsed racial bias, they, like all social institutions, may still be challenged by implicit biases that are much more difficult to identify and change’ (pp 1-2). This report explores the content and delivery of educational programs on implicit bias for judicial and court staff.
Danziger, Shai, Jonathan Levav and Liora Avnaim-Pesso, ‘Extraneous factors in judicial decisions’ (2011) 108(17) Proceedings of the National Academy of Sciences 6889.
The authors ask: are judicial rulings based solely on laws and facts? The authors test the common caricature that justice is “what the judge ate for breakfast” by examining sequential parole decisions made by experienced judges. We record the judges’ two daily food breaks, which result in segmenting the deliberations of the day into three distinct “decision sessions.” We find that the percentage of favorable rulings drops gradually from ˜65% to nearly zero within each decision session and returns abruptly to ˜65% after a break. Our findings suggest that judicial rulings can be swayed by extraneous variables that should have no bearing on legal decisions.
Epstein, Deborah, and Lisa A Goodman, ‘Discounting Credibility: Doubting the Testimony and Dismissing the Experiences of Domestic Violence Survivors and Other Women’ (2018) 167 University of Pennsylvania Law Review (forthcoming).
This article addresses the ways in which the credibility of female victims of intimate partner violence is discounted through their experiences of legal and social services (pp 3-4). The authors conclude that women’s experiences are frequently discounted, which itself can have further traumatic impacts. Judges and other professionals often discount women’s stories of abuse as implausible, particularly where the victims suffer from psychological trauma that may impact memory and comprehension (p 7). Women who suffer traumatic brain injuries (pp 9-11) or PTSD (pp 11-3) as a result of domestic violence are particularly susceptible to relaying inconsistent stories. The authors also find that cultural assumptions resulting in the prioritisation of physical over psychological violence causes judges and other authority figures to expect ‘real’ survivors to also prioritise physical harm, while in reality, victims may feel more significantly impacted by psychological abuse (pp 17-20).
Moreover, the results of the study indicate that gatekeepers often unjustly discount women’s personal trustworthiness, based on perceptions of their demeanour (pp 21-5), their perceived motive (pp 25-32), and their social location (pp 32-7). Even women who are able to overcome initial scepticism often find that the systems intended to provide assistance dismiss the importance of their experiences (p 37). In spite of meaningful progress, ‘the criminal justice system continues to discount important aspects of women’s experiences and to trivialize some of the harmful consequences that policies focused primarily on offender accountability often impose on survivors’ (p 38). Ultimately, ‘the arbiters of justice and social welfare adopt and enforce legal and social policies and practices with little regard for how they perpetuate patterns of abuse’ (p 1).
These experiences of minimisation often echo women’s previous experiences of abuse (p 46). The impacts of this discrediting are multifaceted: the dismissal itself constitutes its own injury, which can compound the harm such women experience directly from the abuse (pp 47-50); additionally, this instinctive devaluing of women’s testimony becomes an independent obstacle to attempts to obtain safety and justice (pp 50-2). The authors conclude that credibility discounting is widespread and pervasive, and requires genuine institutional reform (p 59). Particularly, actors must be aware of these internalised assumptions, and seek to engage more openly with victims (see pp 54-6).
Greenwald, Anthony G and Linda Hamilton Krieger, ‘Implicit Bias: Scientific Foundations’ (2006) 94(4) California Law Review 945.
The article starts by contrasting implicit bias with the ‘naïve’ psychological conception of social behaviour, which sees human beings as guided only by their explicit beliefs and their conscious intentions to act. ‘A belief is explicit if it is consciously endorsed. An intention to act is conscious if the actor is aware of taking an action for a particular reason’. By contrast, ‘the science of implicit cognition suggests that actors do not always have conscious, intentional control over the processes of social perception, impression formation, and judgment that motivate their actions’ (p.946).
The article notes that research began on implicit mental processes in the 1980s and this included research on implicit memory, implicit attitudes (attitude as ‘an evaluative disposition'), and implicit stereotypes (‘a mental association between a social group or category and a trait) (pp.947-950). It then examines response bias and implicit bias specifically in Part III. It defines implicit biases as ‘discriminatory biases based on implicit attitudes or implicit stereotypes’. It continues, ‘implicit biases are especially intriguing, and also especially problematic because they can produce behaviour that diverges from a person’s avowed or endorsed beliefs or principles. The very existence of implicit bias poses a challenge to legal theory and practice, because discrimination doctrine is premised on the assumption that, barring insanity or mental incompetence, human actors are guided by their avowed (explicit) beliefs, attitudes, and intentions’. Biases can be either favourable or unfavourable (p.951).
This article also points out that the Implicit Association Test (IAT) (see ‘Other Resources’ in this section) is a measure of implicit bias and it has shown that implicit biases are highly prevalent. The article notes that research has shown that implicit attitudes produce discriminatory behaviour (p.961).
Guthrie, Chris, Jeffrey J Rachlinski, Andrew J Wistrich, ‘Judging by Heuristic: Cognitive Illusions in Judicial Decision Making’ (2002) 86(1) Judicature 44.
The article notes that ‘people rely on mental shortcuts or ‘heuristics’ to make complex decisions. Reliance on heuristics sometimes causes people to draw systematically inaccurate inferences – these heuristics can create cognitive illusions of judgment’ (p.44). The authors gave a brief questionnaire to judges and found that a number of cognitive illusions influenced their decision-making process (p.44). The authors usefully note and explain a number of heuristics used by judges including anchoring, framing, hindsight bias, inverse fallacy, and egocentric bias.
Guthrie, Chris, Jeffrey J Rachlinski, Andrew J Wistrich, ‘Blinking on the Bench: How Judges Decide Cases’ (2007) 93 Cornell Law Review 1.
In this article, the authors posit an answer to the question, ‘how do judges judge?’ The authors argue that key insights from both the formalist and realist models of judging provide a more accurate view of how decisions are made. This model, the ‘intuitive-override’ model of judging, ‘posits that judges generally make intuitive decisions but sometimes override their intuition with deliberation. Less idealistic than the formalist model and less cynical than the realist model, our model is best described as "realistic formalism." The model is "realist" in the sense that it recognizes the important role of the judicial hunch and "formalist" in the sense that it recognizes the importance of deliberation in constraining the inevitable, but often undesirable, influence of intuition’ (p.3).
In Part I of the Article, the authors present their intuitive-overdrive model of judging. They state that the ‘proposed dual-process model of judging, which is based on a general model developed by Daniel Kahneman (see above) and Shane Frederick, posits that judges make initial intuitive judgments (System 1), which they might (or might not) override with deliberation (System 2).
In Part II, the authors present their results that show judges commonly make judgments intuitively rather than reflectively. Thus, these results support the intuitive overdrive model.
In Part III, the authors examine the implications of these findings for the judicial system. They note that deliberative decision making is more likely to lead to just outcomes and provide some suggestions as to what the justice system can do to encourage judges to decide matters more deliberatively such as: ‘the amount of time that judges have to make rulings, the potential disciplining effect of opinion writing, the amount of training and feedback judges receive, the use of scripts, checklists, and multifactor tests in judging, and the allocation of decision-making resources’ (pp.35-43).
The authors relevantly note at p.5: ‘Eliminating all intuition from judicial decision making is both impossible and undesirable because it is an essential part of how the human brain functions. Intuition is dangerous not because people rely on it but because they rely on it when it is inappropriate to do so. We propose that, where feasible, judges should use deliberation to check their intuition’.
Hu, X. and Hancock, A.M. (2024) State of the science: Introduction to implicit bias review 2018-2020The Kirwin Institute for the Study of Race and Ethnicity.
Building on previous annual analyses of the current research on implicit bias this article tracks the latest developments. In particular it discusses key types of mental associations that are frequently studied in conjunction with implicit bias. The paper includes a useful Infographic showing how they relate to each other and how they relate to implicit bias. The key types include schemas, stereotypes, attitudes, prejudices and microaggressions. It explains the terminology.
Kahneman, Daniel, Thinking, fast and slow (Allen Lane, 2011).
Defining ‘fast’ and ‘slow’ thinking: This book examines the biases (i.e. systematic errors made by people) of intuitive thinking. The book presents a view of how the mind works, with a particular focus on the ‘marvels’ and ‘flaws’ of intuitive thought (pp.4-10). Kahneman uses two metaphorical agents (‘two systems’) to explain how we think:
System 1 (‘fast thinking’): ‘operates automatically and quickly, with little or no effort and no sense of voluntary control’ (p.20), intuitive thinking.
System 2 (‘slow thinking’): ‘allocates attention to the effortful mental activities that demand it, including complex computations. The operations of System 2 are often associated with the subjective experience of agency, choice and concentration’ (p.21), effortful decision-making.
Intuitive thinking as the main architect of our decisions and judgments: While we tend to identify ourselves with System 2, ‘the conscious, reasoning self that has beliefs, makes choices, and decides what to think about and what to do’ (p.21), it is the automatic System 1 that is responsible for many of the choices and judgments people make.
Problems of intuitive thinking: System 1 can cause ‘cognitive illusions’, illusions of thought (p.27) and it is a machine for jumping to conclusions. In Chapter 7, Kahneman argues that System 1 thinking both seeks coherence in the world but it is also ‘radically insensitive to both the quality and the quantity of information that gives rise to impressions and intuitions’ (p.86). Thus, it produces intuitive beliefs which may be incorrect and which System 2 endorses because it is lazy much of the time. This characteristic of System 1 type thinking is so important to the book that Kahneman gives it its own acronym. ‘WYSIATI, which stands for what you see is all there is’ (p.86). ‘WYSIATI facilitates the achievement of coherence and of the cognitive ease that causes us to accept a statement as true. It explains why we can think fast, and how we are able to make sense of partial information in a complex world. Much of the time, the coherent story we put together is close enough to reality to support reasonable action. However WYSIATI helps explain a long and diverse list of biases of judgment and choice, including the following:
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Overconfidence: neither the quantity nor the quality of the evidence counts for much in subjective confidence. The confidence that individuals have in their beliefs depends mostly on the quality of the story they can tell about what they see, even if they see little. We often fail to allow for the possibility that evidence that should be critical to our judgment is missing – what we see is all there is. Furthermore, our associative system tends to settle on a coherent pattern of activation and suppresses doubt and ambiguity’ (pp.87-88).
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Framing effects: Different ways of presenting the same information often evoke different emotions. The statement that ‘the odds of survival one month after surgery are 90%’ is more reassuring than the equivalent statement that ‘mortality within one month of surgery is 10%’. Similarly cold cuts described as ‘90% fat-free’ are more attractive than when they are described as ‘10% fat’. The equivalence of the alternative formulations is transparent, but an individual normally sees only one formulation, and what she sees is all there is’ (p.88).
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Base-rate neglect: Recall Steve, the meek and tidy soul who is often believed to be a librarian. The personality description is salient and vivid, and although you surely know that there are more female than male librarians, that statistical fact almost certainly did not come to your mind when you first considered the question. What you saw was all there was’ (p.88).
How to overcome these?: ‘What can be done about biases? How can we improve judgments and decisions, both our own and those of the intuitions that we serve and that serve us?’
‘The short answer is that little can be achieved without a considerable investment of effort’. People can improve their ability to recognise situations in which errors are likely and it is easier to recognise the errors of others rather than the errors of oneself. ‘The way to block errors that originate in System 1 is simple in principle: recognise the signs that you are in a cognitive minefield, slow down, and ask for reinforcement from System 2’. But this procedure is difficult to apply as cognitive illusions are difficult to recognise. However, Kahneman explains that it is easier to identify cognitive illusions as an observer (p.417).
Further, organisations are better than individuals at avoiding errors because they think more slowly and can impose procedures. They can enforce the application of useful checklists plus other exercises, and they can also encourage people to watch out for each other when approaching minefields (pp.417-418).
Note: the References and Notes at the back of the book contain comprehensive lists of sources reflecting the substantial academic literature in this research area.
Levinson, Justin D., Mark W. Bennett and Koichi Hioki, ‘Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes’ (2017) 69 Florida Law Review 63.
This US study tested 239 federal and state judges to examine whether they exhibit implicit bias in white-collar sentencing. The authors used the Implicit Association Test to test implicit bias and a hypothetical sentencing case study to test sentencing decisions.
It found that judges harboured strong to moderate negative implicit stereotypes against Asian-Americans and Jewish people, associating them with traits such as ‘greedy’, ‘dishonest’ and controlling’, while holding favourable implicit stereotypes towards Whites and Christians, associating them with traits such as ‘trustworthy’, ‘honest’ and ‘giving’ (p 104). The study also found that federal district court judges sentenced Jewish defendants to marginally longer prison terms than identical Christian defendants, and the disparity was likely the result of implicit bias (p 109).
Mitchell, Gregory and Philip E Tetlock, ‘Implicit Attitude Measures’ in Robert Scott and Stephen Kosslyn (eds), Emerging Trends in Social and Behavioural Sciences (John Wiley & Sons, 2015).
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Contemporary measures of implicit attitudes such as the popular ‘Implicit Association Test’ ‘equate spontaneous responses to stimuli with attitudes about those stimuli.’ The authors here note that while these measures have opened new and important lines of inquiry, ‘they suffer from reliability and construct validity problems and administrative limitations’ (p.1). These include:
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Implicit attitude measures can be difficult to implement. These measures involve considerable time and effort in laboratory settings and it is not feasible to use some of the measures outside the laboratory (p.7).
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There is evidence that participants can consciously mediate their responses. ‘Participants often infer the purpose behind the task and can intentionally alter their pattern of responses and thus the attitudes ascribed to them, controlled processes contribute to responses on the implicit tasks even when those processes are beyond the awareness of participants, and reactivity biases can affect responses on these measures’ (p.7).
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These new measures may be affected by factors other than attitude e.g. ‘individual differences in working memory that affect the speed with which information is processed? … Factors such as the respondent’s amount of practice on the task, age, general processing speed and ability to switch tasks quickly and effectively, and familiarity with the attitude-object stimuli, if not accounted for, will contaminate the results and lead to erroneous conclusions about the attitudes of respondents’ (p.8).
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‘[T]he new implicit measures raise basic construct validity questions concerning the meaning of an attitude and how to go about measuring attitudes…a researcher considering the use of the new implicit measures should be aware of ongoing debates about the proper definition of attitude and whether the new implicit measures actually measure anything that should be called an attitude’ (pp.7-8).
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These measures ‘often exhibit low split-half and test-retest reliability scores’ (p.8).
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‘[T]he new implicit measures often fail to outperform simple explicit measures of attitudes in the prediction of behaviour’ (p.9).
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The authors argue: ‘Researchers conducting basic research on attitudes may fruitfully utilize implicit measures as part of a multipronged measurement strategy, but researchers seeking to predict behaviour from attitudes should continue to rely on explicit measures of attitudes, taking care to minimize reactive bias and to formulate the attitude questions at the same level of specificity as the behaviour to be predicted’ (p.1).
National Judges Association, Domestic Violence and the Courtroom: Knowing the Issues… Understanding the Victim (n.d.).
This resource provides practical guidance for judges in engaging with victims of domestic violence in the courtroom. It includes a checklist designed to assist judges in becoming more informed about cultural issues and the challenges culture may present in individual cases (p 9):
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Examine your own cultural heritage and identity.
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Does your cultural identity affect, limit, or enhance your work as a judge?
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What do you believe about people who are different?
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How can you become more aware of potentially blinding preferences, such as pre-existing beliefs or assumptions about other cultures?
Additionally, it is important to consider how cultural factors may impact the parties (p 10):
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How does cultural difference impact remedies to assist the victim or minimise harm to the victim?
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How does cultural difference facilitate the imposition of meaningful interventions for perpetrators?
Richardson, L. Song, ‘Systemic Triage: Implicit Racial Bias in the Criminal Courtroom’ (2017) 126 Yale Law Journal 862.
Richardson draws on social science evidence to argue that biases influence discretionary decisions, perceptions and practices in ways that are not readily observable and thrive in conditions of ‘systemic triage’.
‘Systemic triage’ is defined as the process of allocating scarce resources in a criminal justice system overloaded with ‘tough on crime’ policies and policing practices, which disproportionately affect indigent, urban and minority communities (p 878). These policies and practices burden the system with more cases than it can handle. Richardson argues that defenders, prosecutors and judges are constantly subject to cognitive depletion and incomplete information, which is a typical situation in which implicit biases arise (p 881). Unconscious biases emerge for public defenders and police prosecutors in the sorting process to determine which cases are deserving of prosecution (p 880).
Staats, Cheryl, ‘State of the Science: Implicit Bias Review 2014’ (Kirwan Institute for the Study of Race & Ethnicity, 2014).
Chapter 1 of the text provides an introduction to the topic of implicit biases.
Defining implicit biases – Implicit biases are: ‘the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner. These biases, which encompass both favourable and unfavourable assessments, are activated involuntarily and without an individual’s awareness or intentional control.’ (p.16).
On p.17 the review provides a useful list of key characteristics of implicit biases namely, that they are pervasive and robust; implicit and explicit biases are generally regarded as related but distinct mental constructs; implicit associations do not necessarily align with our declared beliefs; we generally hold implicit biases that favour our own ingroup; implicit biases have real-world effects on behaviour; and implicit biases are malleable.
Staats, Cheryl et al, ‘State of the Science: Implicit Bias Review, 2016 Edition’ (Kirwan Institute for the Study of Race & Ethnicity, 2016).
‘The 2016 State of the Science: Implicit Bias Review is the fourth edition of this annual publication. By carefully following the latest scholarly literature and public discourse on implicit bias, this document provides a snapshot of the field, both in terms of its current status and evolution as well as in the context of its relevant antecedents. As in previous editions, this publication highlights the new 2015 academic literature through the lenses of five main domain areas: criminal justice, health and health care, employment, education, and housing. Accompanying these five content areas is a discussion of the latest research-based strategies for mitigating the influence of implicit biases, as well as a recognition of major contributions that expand beyond these domain-specific boundaries’.
There is an excellent, up-to-date fact sheet on pp.14-15 which provides an introduction to implicit bias.
It defines implicit bias as: ‘The attitudes or stereotypes that affect our understanding, actions and decisions in an unconscious manner. Activated involuntarily, without awareness or intentional control. Can be either positive or negative. Everyone is susceptible’.
Implicit bias matters because everyone possesses such associations and they affect our decisions, behaviours and interactions with others.
What can be done about it? (1) Educate yourself – take the Implicit Associate Test (IAT) on implicit.harvard.edu (2) Take action (3) Be accountable.
Williams, Joan et al, ‘You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession’ American Bar Association, 2018.
This report details the endemic bias women and minority lawyers continue to face compared to their white male counterparts, and also provides tools to disrupt the status quo. Current efforts to advance women and minorities have largely failed, and bias and discrimination (both explicit and implicit) persist. In addition to gender bias, the report also documents sexual harassment at work and outlines four major patterns of systemic bias in the workplace. Relevant to decision-makers may be the section implementing bias interrupters at pp102-104.
Wistrich, Andrew J. and Rachlinski, Jeffrey J., Implicit Bias in Judicial Decision Making How It Affects Judgment and What Judges Can Do About It (March 16, 2017). Chapter 5: American Bar Association, Enhancing Justice (2017); Cornell Legal Studies Research Paper No. 17-16.
This paper discusses strategies that judges and judicial officers can employ to reduce excessive reliance on intuition and implicit biases. Part I (see pp 90-104) discusses research demonstrating that judges are vulnerable to errors caused by intuitive decision-making (p 92). For an example of anchoring, one study found that judges imposed shorter sentences when asked to impose a sentence in months than years: the average sentence in months was 63 months, compared to 9 years (p 94). Part B offers suggestions for judges to combat unconscious bias. For example, that judges take an Implicit Association Test to alert judges to their racial bias, because most judges (like most people) tend to rate themselves above the median judge with respect to avoiding racial bias (p 106). It also suggests auditing (pp 108-10), appointing more judges and support staff from diverse backgrounds (p 110-1), writing opinions more often (p 117-8), and making use of rules and checklists (p 119). However, there is a risk involved, because any of these solutions that require more cognitive effort from judges may make them susceptible to other types of error (p 107).
It is fundamental to the proper administration of justice and to public confidence in the judicial system that all parties are, and believe they are, treated fairly and without discrimination. Judicial officers must ensure that any personal biases or prejudices, or tendencies to stereotype or make false assumptions about people do not influence their decision making. This duty extends to ensuring transparency and particularity in their judicial reasoning.
The legal system provides mechanisms for enabling challenges to impartiality by reasons of apprehended bias or conflict of interest. Where there is proven or even the appearance of bias, a judicial decision may be set aside. Decisions made by judicial officers in circumstances where a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the question, may be set aside, unless waiver or necessity is established.
In recent years, there has been significant research into how mental short cuts, known as heuristics, affect the way decisions are made. Researchers have considered how implicit bias (sometimes called unconscious or unintended bias) can affect decision-making. Implicit bias may affect an individual’s understanding, actions and decisions in an unconscious manner, and operate without the individual’s awareness or intentional control. Seminal research by psychologists, Daniel Kahneman and Amos Tversky, identify two systems of thinking (intuitive or fast thinking; and conscious or slow thinking) and examine the biases (or systematic errors) of intuitive thinking. Intuitive thinking suppresses doubt and ambiguity in order to quickly assemble coherent interpretations. Conscious thinking, on the other hand, accommodates doubt and incompatible possibilities in the process of deliberation.
Set out below are some of the key implicit biases identified in the literature; they can apply across all facets of decision-making. Judicial decision-making in domestic and family violence related cases frequently involves identifying factors affecting risk, assessing risk, and exercising a heightened awareness of the cautions associated with typologising, stereotyping and making false assumptions about parties, their circumstances and their motivations. In understanding the potential for bias in the context of judicial decision-making, and learning, through self-examination and reflection of any particular personal biases, judicial officers can develop strategies for eliminating bias from their decision-making.
Representativeness v base-rate information
When making a judgment about facts, there is a tendency to ignore base rates and doubts about the veracity of a description and favour a judgment of representativeness. Representativeness results from a focus on aligning a description with a stereotype. Base rates are relevant statistical facts. In many cases, there is some truth to the stereotypes that govern judgments of representativeness, and the predictions that follow may be accurate. In other situations the stereotypes are false and the representativeness misleading, especially if the base-rate information points in a different direction.
Availability
When estimating the likelihood of an event or outcome or the frequency or prevalence of a category (eg people, behaviours), it is likely that the estimate will be based on the instances most easily retrievable from memory; if retrieval is easy, the estimate is likely to be high. What is more obvious or more vivid will appear to be more probable.
Anchoring
When making a decision there is a common tendency to rely too heavily on the first piece of information offered. For example, information may be offered about a numerical value. This information tends to have the effect of anchoring the decision to that numerical value, even where that value may bear no reasonable relation to what the value ought to be. Once an anchor is set, there is a bias toward interpreting later information around the anchor.
Framing
Logically equivalent statements—posed or framed differently—can evoke different meanings and responses. For example, risk preferences depend on whether outcomes are framed in terms of gains or losses vis-à-vis a particular reference point, which could be the status quo or current position or, alternatively, an expectation or aspiration regarding a particular position (also known as prospect theory). There is a tendency to take more risks with losses than with gains.
Hindsight
When an unpredicted event occurs, the view of the past and future is adjusted immediately to accommodate the surprise, and there is a tendency to lose the ability to recall what was previously believed to be probable. Hindsight bias may result in the quality of a decision being assessed not by whether the beliefs on which it was based were sound and reasonable, but by whether the outcome was good or bad. Further, a propensity to make sense of the past may lead to an illusion that the future can be predicted or controlled.
Over-confidence
Subjective confidence in personal opinions or judgments reflects a personal feeling about the coherence of a self-constructed story and the cognitive ease of processing it. The amount and quality of the evidence have little or no bearing in this context.
Small numbers
There is a tendency to exaggerate the consistency and coherence of what is witnessed, and to believe that small samples are representative of the much larger population from which they are drawn. With little evidence, conclusions are accelerated, and a bigger story is constructed based on that evidence; this is also known as narrative fallacy.
False consensus
There is a tendency to view personal behaviour and responses as typical and appropriate while viewing alternatives as odd and inappropriate.
It is fundamental to the proper administration of justice and to public confidence in the judicial system that all parties are, and believe they are, treated fairly and without discrimination. Judicial officers must ensure that any personal biases or prejudices, or tendencies to stereotype or make false assumptions about people do not influence their decision making. This duty extends to ensuring transparency and particularity in their judicial reasoning.
The legal system provides mechanisms for enabling challenges to impartiality by reasons of apprehended bias or conflict of interest. Where there is proven or even the appearance of bias, a judicial decision may be set aside. Decisions made by judicial officers in circumstances where a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the question, may be set aside, unless waiver or necessity is established.
In recent years, there has been significant research into how mental short cuts, known as heuristics, affect the way decisions are made. Researchers have considered how implicit bias (sometimes called unconscious or unintended bias) can affect decision-making. Implicit bias may affect an individual’s understanding, actions and decisions in an unconscious manner, and operate without the individual’s awareness or intentional control. Seminal research by psychologists, Daniel Kahneman and Amos Tversky, identify two systems of thinking (intuitive or fast thinking; and conscious or slow thinking) and examine the biases (or systematic errors) of intuitive thinking. Intuitive thinking suppresses doubt and ambiguity in order to quickly assemble coherent interpretations. Conscious thinking, on the other hand, accommodates doubt and incompatible possibilities in the process of deliberation.
Set out below are some of the key implicit biases identified in the literature; they can apply across all facets of decision-making. Judicial decision-making in domestic and family violence related cases frequently involves identifying factors affecting risk, assessing risk, and exercising a heightened awareness of the cautions associated with typologising, stereotyping and making false assumptions about parties, their circumstances and their motivations. In understanding the potential for bias in the context of judicial decision-making, and learning, through self-examination and reflection of any particular personal biases, judicial officers can develop strategies for eliminating bias from their decision-making.
Representativeness v base-rate information
When making a judgment about facts, there is a tendency to ignore base rates and doubts about the veracity of a description and favour a judgment of representativeness. Representativeness results from a focus on aligning a description with a stereotype. Base rates are relevant statistical facts. In many cases, there is some truth to the stereotypes that govern judgments of representativeness, and the predictions that follow may be accurate. In other situations the stereotypes are false and the representativeness misleading, especially if the base-rate information points in a different direction.
Availability
When estimating the likelihood of an event or outcome or the frequency or prevalence of a category (eg people, behaviours), it is likely that the estimate will be based on the instances most easily retrievable from memory; if retrieval is easy, the estimate is likely to be high. What is more obvious or more vivid will appear to be more probable.
Anchoring
When making a decision there is a common tendency to rely too heavily on the first piece of information offered. For example, information may be offered about a numerical value. This information tends to have the effect of anchoring the decision to that numerical value, even where that value may bear no reasonable relation to what the value ought to be. Once an anchor is set, there is a bias toward interpreting later information around the anchor.
Framing
Logically equivalent statements—posed or framed differently—can evoke different meanings and responses. For example, risk preferences depend on whether outcomes are framed in terms of gains or losses vis-à-vis a particular reference point, which could be the status quo or current position or, alternatively, an expectation or aspiration regarding a particular position (also known as prospect theory). There is a tendency to take more risks with losses than with gains.
Hindsight
When an unpredicted event occurs, the view of the past and future is adjusted immediately to accommodate the surprise, and there is a tendency to lose the ability to recall what was previously believed to be probable. Hindsight bias may result in the quality of a decision being assessed not by whether the beliefs on which it was based were sound and reasonable, but by whether the outcome was good or bad. Further, a propensity to make sense of the past may lead to an illusion that the future can be predicted or controlled.
Over-confidence
Subjective confidence in personal opinions or judgments reflects a personal feeling about the coherence of a self-constructed story and the cognitive ease of processing it. The amount and quality of the evidence have little or no bearing in this context.
Small numbers
There is a tendency to exaggerate the consistency and coherence of what is witnessed, and to believe that small samples are representative of the much larger population from which they are drawn. With little evidence, conclusions are accelerated, and a bigger story is constructed based on that evidence; this is also known as narrative fallacy.
False consensus
There is a tendency to view personal behaviour and responses as typical and appropriate while viewing alternatives as odd and inappropriate.