Judicial Notebook

Imagine you are a trial judge. You look out into your crowded courtroom where 20 defendants wait to hear their names called off the docket. Some defendants are no strangers to the inside of courtrooms. Other defendants are undoubtedly innocent. You try to move the cases off the docket as quickly as possible so you will be able to get through them all. You spend much of your time multitasking as the cases are called; you sign papers and whisper answers to your clerk’s questions, all while trying to listen to attorneys who present motions and arguments. 

Case overload, fatigue, multitasking and burnout are everyday realities judges face as they keep the wheels of justice moving. Yet, these are also some of the conditions that psychological research shows underlie diminished decision-making abilities. One contributing factor may be relying on “rules of thumb,” or heuristics, to quickly decide cases. For example, a judge may rely on stereotypes about gender and race as they can relate to reoffending. Despite the superficial similarities between cases, however, it is important for judges to pay sufficient attention to each case to reach fair and just outcomes. 

A potential result of heuristic decision making might be the criminal justice system’s racial disparities in process and outcomes. Evidence shows, for example, that minority defendants fare worse than white defendants who are similarly situated. Research by Jeffrey Rachlinski, PhD, JD, of Cornell University Law School, and colleagues demonstrates that U.S. trial court judges harbor the same implicit biases against black Americans that most Americans harbor. It follows that judges’ decisions may be influenced by implicit racial biases; however, these researchers also showed that many of the judges were able to compensate for the influence of these biases when they had sufficient awareness and motivation to do so. 

Using fair and just procedures in all cases is important for many reasons. Some of the reasons, according to Tom R. Tyler, PhD, of Yale Law School, are that unless trial participants perceive the court as fair, public perception of the court suffers and compliance with court orders decreases. Two conditions that undermine perceived fairness are when judges do not give litigants and defendants “voice” and when the judge is perceived as not treating participants with respect or dignity. Because of the court system’s burdens, even the most well-intentioned judges may inadvertently send the message that they do not have time to, or do not want to hear, what the litigant or defendant has to say. 

Might mindfulness help lessen the effects of faulty cognitive shortcuts and implicit biases? Mindfulness is the practice of focusing attention and non-judgmentally observing thoughts, emotions and bodily sensations as they ebb and flow. For example, Bob Stahl, PhD, and Elisha Goldstein, PhD, offer a brief mindfulness practice they call the “STOP meditation.” STOP is an acronym that could remind judges to Stop what they are doing, Take a few deep breaths and focus on the experience of breathing, Observe their thoughts, feelings and actions, and Proceed with new awareness. With practice, people who engage in mindfulness are thought to be able to respond to decision-making tasks with greater focus, attention and reflection rather than relying on heuristics. And, as with physical exercise, the more one engages in the activity, the more skilled one becomes. 

Pamela Casey, PhD, and her colleagues at the National Center for State Courts suggest that teaching brief mindfulness techniques to judges will enable them to “reset” their attention whenever they begin feeling distracted or overwhelmed. Would litigants and defendants feel more satisfied with the justice process if they faced judges who practice mindfulness? How much time would a mindful approach add to an average case (if any)? Would the number of appeals filed decrease if trial participants are more satisfied with the justice process? Might the racial disparities in the justice system decrease when judges are more attentive to and mindful about individual defendants? Psychological research could empirically examine these important questions to determine if a contemplative and mindful approach to cases may help judges reaffirm the priority of each case, and ensure that each person before the court is given a fair process. 

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).

References

  • Casey, P., Burke, K., & Leben, S. (2013). Minding the court: Enhancing the decision-making process. International Journal for Court Administration, 5, 45-54. 
  • Rachlinski, J.J., Johnson, S.L., Wistrich, A.J., & Guthrie, C. (2009). Does unconscious racial bias affect trial judges? Notre Dame Law Review, 84, 1195-1246. 
  • Stahl, B. & Goldstein, E. (2010). A mindfulness-based stress reduction workbook. Oakland, CA: New Harbinger Publications. 
  • Tyler, T.R. (2007). Procedural justice and the court. Court Review, 44, 30-31.