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When Justice Isn’t So Blind

Wall Street Journal, August 9, 2017

By Robert M. Sapolsky

We all know that there are discrepancies between the ideal of how institutions are supposed to work and their everyday reality. A recent paper explores one troubling problem of this sort in the judicial realm.

In principle, justice is blind: Everyone is equal before the law, judged by facts and legal precedents rather than by who they are. Writing in the June 2016 issue of the Journal of Legal Studies, Holger Spamann of Harvard Law School and Lars Klohn of Humboldt University in Germany tested whether this is actually how cases are decided.

The subjects—32 federal judges, attending a conference—were asked to make a ruling about a hypothetical criminal conviction. (By design, the case differed from the ones the judges usually handled.) The defendant had been brought before an international tribunal for war crimes committed in Bosnia in the 1990s. This military leader had armed a group that, unbeknown to him, then committed war crimes. He had been convicted of his indirect involvement and was now appealing.

For the experiment, Profs. Spamann and Klohn manipulated two variables. First, half of the judges read about a prior court ruling that established a weak precedent for convicting someone of a crime based on indirect involvement, while the other half read a precedent that suggested that indirect involvement shouldn’t lead to a conviction. As the crucial second variable, for half of each group, the defendant was unsympathetic—an ultranationalist Serb who was remorseless about Serbian atrocities and went on to head an extremist Serbian party. For the others, the defendant was a Croatian, remorseful and now working for a reconciliation organization. This information about the defendants was noted in passing amid considerable reading material.

Each judge read about the case, decided whether to uphold the conviction and then explained the decision in writing. Ideally, they would only consider the issue of direct versus indirect involvement, making use of the provided legal precedent. The authors asked another group of 102 law professors for their predictions about the outcome; only 13% thought that the personal characteristics of the defendant would count most in the judges’ decisions.

Naturally, things turned out differently. While 87% of the judges upheld the conviction of the extremist Serb, no matter what the precedent, only 41% did for the remorseful Croat. In other words, rulings were driven by the defendant’s personal attributes rather than by legal precedent.

Even more interesting were the judges’ explanations for their decisions. Did they write about how legal precedent is one thing, but at the end of the day the most important thing is the individual on trial? No. Most cited the precedent if it supported their decision. Others discussed legal or policy matters. The only judge to mention who the defendant was did so to note the irrelevance to the decision-making.

A few caveats: This wasn’t a courtroom, and the scenario tilted toward focusing on the defendant’s characteristics—the legal precedents were mild while the personal characteristics were anything but. Nevertheless, the defendant’s attributes counted the most, and no judge was aware of or willing to acknowledge that fact.

This is not to single out the judicial system. Previous research has suggested that scientists find data to be more credible when it supports their own view. Teachers assess classroom performance differently depending on what (fictitious) IQ they have been told a student has. Research in neuroscience and psychology shows that we tend to make decisions based on emotions and only then scramble to explain why the decision makes perfect sense.

Whether considering people who are professionally trained for pure rationality or the rest of us, a vast chasm divides the ideal and the foible-filled reality of human behavior.