Emotional Influences on Judges

Despite a veneer of logical dispassion research shows that sympathy and other emotions influence judicial decision making.

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The great Clarence Darrow argued that emotion was everything in the courtroom. He asserted that juries "seldom convict a person they like or acquit one that they dislike" and thus "the main work of a trial lawyer is to make a jury like his client, or, at least, to feel sympathy for him; facts regarding the crime are relatively unimportant." Although his view on emotions is extreme, most people believe emotions influence juries. But what about judges? Especially when they are deciding issues of law, we expect that judges will set aside their sympathies.

In fact, judges routinely assert that sympathy and emotions have no role in their decision making. In her confirmation hearings Justice Sotomayor stated explicitly that "it is not the heart that compels conclusions in cases. It's the law." Similarly, when asked by Senator Chuck Grassley whether she agreed that "the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?" Justice Kagan replied that "it's law all the way down." The public expects judges to affirm a dispassionate commitment to the law.

Some judges, however, admit that emotion plays a role in shaping the law. Justice William Brennan asserted that "[s]ensitivity to one's intuitive and passionate responses … is … not only an inevitable but a desirable part of the judicial process." Justice Robert Jackson likewise asserted that a dispassionate judge was a mythical being, much like "Santa Claus or Uncle Sam or Easter bunnies."

Are judges free from the influence of sympathy or is that ideal a myth? To shed some light on the question, we undertook a series of experiments to evaluate the role that sympathy might play in the decision making processes of sitting trial judges. In each of our experiments, we asked judges to evaluate a hypothetical case involving either a sympathetic or an unsympathetic litigant.

We recognize, of course, that for the trial judge, emotion might be directly relevant in some cases. For example, judges are obliged to consider background characteristics of a defendant in rendering a criminal sentence, which invariably will create sympathy or antipathy. In our studies, however, we asked judges to make rulings of law, ensuring that the individual characteristics of the litigants were not relevant to the decision being made.

In one study, we asked judges to determine whether an undocumented alien had committed fraud when entering the country. We informed the judges that the defendant had pasted a forged visa into his genuine Peruvian passport in order to gain admission to the United States. He was clearly guilty of illegally entering the United States, which is a misdemeanor.

The prosecutor, however, also wanted to add a charge of forgery of an identification document. If found guilty of this charge the defendant would spend some time in prison before being deported. The defendant admitted that the visa was a fake but argued that pasting a fake visa on a genuine passport did not satisfy the statutory definition of forgery.

For half of the judges, we described the defendant as having entered the United States in an effort to earn extra money for his sick daughter; for the other half, he was trying to track down an individual who had stolen money from a drug cartel. Among the judges who evaluated the father, 44% ruled that he had also committed forgery; whereas 60% ruled against the would-be assassin. Even though the reason for his entry into the United States is not relevant to the statutory definition of forgery, it influenced the judge's choice.

We found similar effects in four other studies. When being asked for a ruling on a legal issue involving drug possession, the judges made a more favorable interpretation of a statute for the defendant when we indicated that he was a 55-year old with a serious illness than a 19-year old with a mild illness. We found that bankruptcy judges were more apt to discharge credit-card debt accrued by a young woman deliberately overspending to help her ailing mother than that of a young man running up debt on a spring break trip.

Judges were more apt to find a city jail's mandatory strip-search policy for new inmate unconstitutional on its face when the plaintiff was a college co-ed arrested at a protest as opposed to a male arrested for a violent crime, even though the judges knew that the ruling would apply to all inmates. And we found judges to be more willing to rule evidence of drug possession admissible under the fourth amendment when the drug was several bags of heroin (accompanied by a contact list at a high school) than when it was two marijuana cigarettes.

In all of our studies, the facts that created sympathy or antipathy were not relevant to the interpretation of law we had asked them to make. It might be unreasonable to suppose that judges will be able to ignore their emotions, however. As Professor Terry Maroney has argued, it may even be counterproductive for judges to try. We agree with Professor Maroney to some extent, but we worry about pernicious influences of emotion. Relying on sympathy creates different law for different people. Furthermore, emotion might be the means by which implicit biases creep into the judicial process.

Our last example of emotion in judges provides a case in point. We asked a large group of Minnesota judges to award punitive damages in an environmental pollution case. The plaintiff was a Minnesota farmer who suffered severe poisoning when swimming in a lake on his property into which the defendant had dumped his company's hazardous waste.

For half of the judges, we indicated that the defendant was also a Minnesota company; for the other half, it was a company from Wisconsin. Although the state of origin could hardly matter, the judges treated the Wisconsinite as an outsider, awarding 50% more in punitive damages against him than against the Minnesotan. We also found similar results with several other pairs of states. Other characteristics that define group membership, such as race, gender, and religion, likely matter far more than state citizenship.

With the greatest of respect to Justices Kagan and Sotomayor, emotions matter to judges. Judging is apparently not "law all the way down." As with all of our research on judges, we find (to quote the great Jerome Frank) that they are human beings after all.

We are grateful to Professor Volokh for the opportunity to present some of our research in his blog this week. We are also grateful to the thousands of state judges, U.S. federal judges, Canadian judges, and Dutch judges for participating in this research. We undertook this project to educate judges and to improve their decision making abilities. We have been fortunate to find receptive and attentive audiences of judges to participate in our efforts.

Our full article on the emotional influence on judges: Andrew J. Wistrich, Jeffrey J. Rachlinski & Chris Guthrie, Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings, 93 Texas L. Rev. 855 (2015).

NEXT: Today in Supreme Court History: June 11, 1993

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  1. “For half of the judges, we indicated that the defendant was also a Minnesota company; for the other half, it was a company from Wisconsin.”

    Now do, “For half of the judges, we indicated that the defendant was also a white male; for the other half, he was a black male,” and let us know the results.

    We have quite a few commenters who don’t believe White Privilege exists.

    1. Then we have commenters like you who think such incredible bigotry is entirely one-sided, always present only on that one side, never present anywhere else, and the true solution is to mandate the opposite as retribution.

      1. Then you haven’t been paying attention kiddo.

        I’ve stated several times over the years that we need ALL voices and opinions in order to maintain a long-term, somewhat stable society.

        Unchecked extremism – too far to the right OR left – is unhealthy and we absolutely needed Trump and his mouth-breathing cult to ensure we don’t swing too far to the left (and as such Trump was a slight correction but definitely NOT a swing in our centuries old progressive, liberal trend).

        The societies that have failed all went too far (again right or left), and did not allow free dissent and/or political activism.

        1. Anyone who picks on White Privilege, capitalized, as the comment concerning Wisconsin vs Minnesota, is too woke to be unbiased as far as bigotry goes.

    2. We have quite a few commenters who think White Privilege is a good idea. That includes all the dark skinned people who risk their lives to come to this country. They want to reach a white country, because all dark countries are shitholes. No exception for 600 years.

      This guy did well. He was the last one. He even set up public education in the 14th Century.

      https://en.wikipedia.org/wiki/Mansa_Musa

      1. Venezuela was the richest country in South America. The Commies took over. They just solved their toilet paper shortage. They have a food shortage.

        Although fully justified by utility, I do not support the killing of millions of Democrats to prevent a Commie takeover of the US. I do support seizing the assets of the tech billionaires behind this movement.

  2. Juries are peculiar institutions as practiced here, from what I gather (IANAL!) from real reports, not movies or books. During the trial, they are treated as fragile, stupid, naive infants, incapable of differentiating admissible evidence from inadmissable, needing judges to filter everything. Then come deliberations, and they are considered so sacred and wise that no one dare ask how they came to their conclusion.

    I wonder what would happen if verdicts were entirely different. Suppose they had to explain everything — the opinion of every scrap of evidence, the chain of conclusions from start to finish. And what if appeals were based on how flawed such verdicts were — they left out some evidence, skipped steps in their chain of conclusions, or made egregious mistakes that could not be ignored (2 + 2 = 5; said they trusted the local astrologer more than an expert witness).

    1. More importantly, juries are now manufactured to fit a specific trial, rather than be more or less random citizens who are enough like most of the jurisdiction to be considered “peers”. Focus on discriminatory attributes like race and sex and relations (are you related to a police officer?) distorts the supposed fairness of the jury system. I would have more faith if the juries were formed by random groups of 14 (assuming 12 and 2 alternates) and assigning them randomly to a trial.

      1. Perhaps rational verdicts would eliminate a lot of the usefulness in that. When logic and completeness are more important, bias fades, or at least is harder to get away with.

    2. Here’s what would happen. Cases would never get decided. The jury would soon be eliminated, and all trials would be bench trials. Maybe that’s a good idea England has long done without civil jury trials), but if it is, let’s just do it rather than crash the system first and be forced into it.

      1. Japan also has a long history of judge(s)-as-jury, and they are quite proud of their 99.9+% conviction rate at trial.
        They recently started having juries (of “lay-judges”) at trial for some crimes, and everyone in the government was shocked when the conviction rate dropped by several percent.

        I’ll take a jury, thank you. Even if they want to trust the local astrologer.

  3. So…..judges are human. Who knew? 🙂

  4. I’m reading an interesting book called “Noise” that talks about how humans make decisions. It has a chapter about sentencing. It found that judges are more likely to be harder on defendants the Monday after the local football team lost a game. And that defendants sentenced immediately before a lunch break, when the judge is hungry, are likely to receive harsher sentences than defendants who are sentenced immediately after. And yes, there are racial disparities, and female judges are more likely to be lenient than male judges.

    Much as I despise the sentencing guidelines, maybe having a formula where the judge just plugs in numbers and goes with the final calculation isn’t such a bad idea after all. Maybe the problem with the sentencing guidelines is that the penalties are too harsh, but not with the idea of guidelines themselves.

    1. I’m reading…

      But almost certainly not comprehending, if your recent repeated insistence that…

      “Your “position” has been that opposition to any measure that makes it “easier” to vote is “voter suppression”.”

      …means…

      “You are opposed to any measure that makes it easier to vote.”

      …is any indication.

      1. Wow, you really must have been butthurt bad if you’re still talking about that six threads later.

      2. I paraphrased. Paraphrases aren’t precise, but they’re not intended to be. But, in keeping with your preference for tossing poo rather than engaging in substantive discussion, you’re back here tossing poo.

        Get back to me when you have a substantive comment to make.

        1. I paraphrased.

          You’re a liar and/or a moron. You didn’t “paraphrase” anything. You either demonstrated fundamental illiteracy or you were being intentionally dishonest about what I said…which would be even worse for you considering that you proceeded to accuse me of being the one who couldn’t understand what I actually wrote.

          But by all means, just keep digging that hole you’ve created and found yourself at the bottom of.

          1. Wow, you must really have been butthurt to still be talking about it six threads later.

            Here’s the thing: I’m familiar with this dynamic. I make a substantive comment, and rather than discuss the substance, you find some molehill to make into a mountain over a minor word choice or some other tangent that has little to do with the substance of what I said, or by interpreting what I said in a way I obviously didn’t intend. You have nothing to talk about on the main point. As I said earlier, you contribute nothing. You’re a poo throwing chimpanzee, and I prefer talking to grownups. So go find a house to haunt.

            1. I make a substantive comment

              No, you don’t.

              or by interpreting what I said in a way I obviously didn’t intend

              They blatant hypocrisy of you making that charge in this context couldn’t be more obvious. You’re an idiot and a lying piece of shit.

              1. Oh, so now I’m not even making substantive comments.

                Go find a house to haunt.

                1. Oh, so now I’m not even making substantive comments.

                  It’s funny that you objected to that, but not being “an idiot and a lying piece of shit”. I guess some things are so patently true that even you won’t attempt to deny them.

                  1. No need to respond to every bit of nonsense in your post if the first one is dispositive.

              2. You’re just mad because you’re used to throwing poo without having anyone fire back. I told you in our very first interaction that I would treat you with as much respect as you treat me. That hasn’t been much, so you shouldn’t expect any in return. What, you think you can insult people and be treated with courtesy in return?

                1. and be treated with courtesy in return?

                  Hell, I’d settle for you exhibiting even the barest shred of integrity by not constantly being a lying piece of shit.

                  1. You’re projecting.

  5. Among the judges who evaluated the father, 44% ruled that he had also committed forgery; whereas 60% ruled against the would-be assassin

    That’s not a lot of difference for the comically emotionally different descritptions.

  6. ” With the greatest of respect to Justices Kagan and Sotomayor ”

    That is the first reference to Justice Kagan I could find in this post. How did she come to be involved, other than by not being a clinger? Why those two? Have no Republican justices expressed sentiments similar to those of Justice Sotomayor?

    Carry on, ankle-nippers.

  7. Emotions play a role in judicial decisions? Wow! What’s next? Water flows downhill?

  8. Hard cases make bad law. I don’t think anyone learnt anything new here.

  9. The issue of judges and how they do, or do not, reach decisions, is a very divisive one in legal circles. I go to CLEs and listen to judges explain that “the law” controls their legal decisions, and then I listen to experienced/successful appellate practitioners declare that that is bunk, and that you have to appeal to their oft hidden emotion proclivities. This is a subset of a wider debate – for example, between ‘traditional’ (Austrian school) economists who argue that people are “rational actors,” and the relatively newer ‘behavioral’ economists who argue that very often people are “irrational actors.”

    The emerging consensus in psychology, and economics, (and, someday, law) is the “dual channel” or “two system” theory of human decision making. For an explanation of this I would suggest psychologist Daniel Kahneman’s book “Thinking, fast and slow” (he won a Nobel Prize in economics as one of the founders of behavioral economics).

    Simply put, science is demonstrating that humans, even those who value “logic,” “rationality,” and “reason”, often vastly underestimate how influential their ‘fast/system 1’ reactions are in their reaching decisions that they think are not emotional/reflexive. This is true for judges, juries (the ‘reptile strategy’ for example), and yes, even scientists. Most judges react to such inconvenient science with horror. I expect that the law will have to be dragged kicking and screaming into the 21st century in this regard, as in so many others.

    1. …then I listen to experienced/successful appellate practitioners declare that that is bunk, and that you have to appeal to their oft hidden emotion proclivities.

      My question…How do you ferret out these hidden emotional proclivities, specifically?

    2. Perhaps “hidden” wasn’t the best word, maybe “denied.” Most judges will not acknowledge/admit that they are influenced by “legally irrelevant” things, but they often respond like most of the population. If you can associate your client with mom, baseball, and apple pie then you are more likely to win, even though in theory “virtue signaling” should not work on judges. And sometimes you learn judges’ ‘triggers’ through experience. I was once in court and the judge was almost asleep while the prosecutor was describing how a guy allegedly beat his girlfriend and mentioned “And when her dog started barking he kicked it.” The judge nearly came out of her seat and started asking questions: Was the dog hurt? Was it kicked once or multiple times? What was the breed? What was its name? Why wasn’t this guy also charged with animal cruelty? etc. etc. It was almost comical. Girlfriend beating was nothing interesting, but a dog, now that got her attention. Note to self: Excuse her on future animal cruelty cases.

      1. Wow! It is a perfect illustration on how judges are, at their core, people just like the rest of us. May I suggest another note to self….wear your ‘I Love Puppies’ tie the next time you’re arguing a case before her. 🙂

  10. This is interesting. Many people are accustomed to think of the *jury* as the repository of the system’s irrational emotions. Judges are assumed to be more rational.

    I think this has less to do with reality than with the fact that jurors, being one-time participants in the system, don’t have a big lobby in their behalf (except maybe lawyers for the kind of cases which win with juries), plus distaste from some people who don’t like “the great unwashed” meddling with the system. So people are open to derogatory comparisons between juries and judges.

  11. You’ve done sympathy, now do sexual attractiveness.

    1. “This skirt comes in three lengths – regular, shorter, and ‘decision for the plaintiff.'”

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