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When is the best time to see a judge?

We are familiar with the image of Lady Justice. She is blindfolded to show her impartiality - it doesn't matter who is standing in front of her to be judged, she cannot see who it is anyway. Instead, all decisions are made by weighing the balance evidence - the scales in her right hand. And having weighed the evidence, she delivers justice swiftly and powerfully, depicted by the sword in her left hand. 

Sounds great. But unfortunately, the blindfold merely accounts for one of the many biases and extraneous factors which affects the judges' decision. What if our partiality and bias is something we are not even aware of? 

As research by Danziger, Levav, Avnaim-Pesso (further reviewed by Daniel Kahneman) reveals, there is more than meets the eye. 

Image by Tingey Injury Law Firm

The observation:

  • 1,112 judicial rulings, collected over a 10-month period

  • 8 Israeli judges presiding over two big parole boards that serve four major prisons in Israel.

  • Prisoners were convicted of a range of crimes such as embezzlement, assault, theft, murder, and rape

  • Each parole board is composed of one judge, as well as a criminologist and a social worker who provide the judge with professional advice.

  • So is there any pattern in the success of parole cases? 

  • Judges saw an average of 23 cases daily (generally each case takes about 6 minutes, as a lot of the information has already been compiled)

  • Judges had 2 breaks in the day: 

    • Between 9:49 and 10:27 AM, they had a snack break (typically a sandwich or a fruit) that last about 38 minutes​. 

    • Between 12.46 and 2.10 PM, they had a lunch break that lasted an average of 57 minutes 

  • So there a pattern? Well just look at the graph!

    • The judge start the day (depicted by the first white circle on the y-axis), and would on average see about 7.8 cases before their first snack break.

    • And then they start seeing cases again (depicted by the second white circle). On average they would see about 11.4 cases before they took a lunch break

    • After lunch, they would see the rest of the cases.

  • What we see is:

    • At the start of each session, the probability of a favourable ruling is on average about 0.65, or 65%!​

    • As the session goes on, the probability of favourable ruling steadily drops; just before the first snack break and at the end of the day, the probability of a favourable ruling is 0!

  • Think about this. If you were fortunate enough to see the judge at a favourable time, at the start of each interval, well you're in luck. You are very likely to get your parole granted. But if you're the sucker that gets to see the judge last in the day, you have practically no chance of being granted parole.

Your chance of parole is dependent on the time of the day you see the judge!

The researchers took into account the difference in the profiles of cases (some prisoners have committed more serious offences; some prisoners have already served a very long sentence before being granted parole hearing). Also, for more than 98% of all parole cases, there was already an existing rehabilitation plan to further help those granted parole. but in every case - seeing the judge earlier always carry a higher success rate than seeing the judge later. Read more about the study in full here

But why does this happen?

As the many chapters and pieces on this website illustrate, each thought, emotion, decision, and behaviour we take is influenced by many factors, most of which we are not consciously aware of.

For most people, our brains are less than 2% of our body weight. But it takes up 20% of energy. Some functions of the brain are particularly energy-sapping:

  • Executive function - weighing between different options to make a difficult decision which has long-term implications

  • Empathy - thinking for others is very difficult. The activation of the part of your brain that regulates empathy - the anterior cingulate cortex - is heavy lifting. 

An extensive body of research backs this up. Get your frontal cortex to work hard - managing complex social settings, multi-tasking, making many decisions consecutively, learning something new - and immediately after, performance on a subsequent frontal cortex dependent task drops.
(Check out these studies by Vohs, Baumeister, et al "Making Choices Impairs Subsequent Self-Control: A Limited-Resource Account of Decision Making, Self-Regulation, and Active Initiative & Watanabe and Funahashi - Neural Mechanisms of Dual-Task Interference and Cognitive Capacity Limitation in the Prefrontal Cortex)


More pertinent to our example on judges, is that after a taxing load on your frontal cortex, people become less pro-soial, less generous, and more likely to lie. We become much more likely to compensate for the heavy brain workout by giving in to easier decisions thereafter, like cheating on our diets. 
(studies: DeWall, Baumesiter, et al "Depletion Makes the Heart Grow Less Helpful: Helping as a Function of Self-Regulatory Energy and Genetic Relatedness" ; Hofmann et al “And Deplete Us Not into Temptation: Automatic Attitudes, Dietary Restraint, and Self Regulatory Resources as Determinants of Eating Behaviour")


We can simply examine our own experiences to see this. Think about how draining it is to consider a very difficult decision, or to really listen, understand, feel for, and worry about another person. It's tough work even for judges who are very capable and experienced in dealing with such cases. Then, imagine having to do so continually throughout the day - the frontal cortices of these judges get more and more tired, and there is a higher possibility that performance drops. 

Similar to physical fatigue, mental fatigue can be mitigated by interventions such as rest, something that creates a positive mood (for example music, good news, nature), or increasing glucose levels in the body. Here's where the breaks come in - taking a break from work and consuming food to re-introduce glucose (energy) to our brains help us to restore our mental functions and empathetic capabilities. 

What's also striking is that if we were to ask the judges why they decided on each parole case as they did, almost every judge will come up with a story to explain their decision - "it was clear from the evidence; I made a conscious decision that he/she did not display repentant attitude".

We tend not to attribute our decisions to anything other than our conscious analysis. But the truth is that we tend to make decisions based on many factors which we are not even aware of. 

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