A recent study reported in an article entitled, “Extraneous Factors in Judicial Decisions,” has scientifically confirmed every practitioner’s worst fears: your client’s fate depends on what the judge had for breakfast.
The study, conducted by three professors of business management and published in the Proceedings of the National Academy of Science, is based on Israeli judges in parole hearings. Accounting for all the obvious variables, including that judges might have a pre-determined quota of favorable decisions, the study finds that the probability of a ruling favorable to the defendant drops from about 65% at the start of the day to nearly zero at the meal break. When the judge has had something to eat, the favorable rulings go back up to 65%, but plummet back down to zero by the end of the day when it’s time for another bite.
The graph, summarizing the results of the study, shows the percentage of favorable decisions on the vertical axis and the order in which the cases are called on the horizontal axis. The red balls represent the start of each court session and the blue dotted lines are the meal breaks. (There are two blue dotted lines because Israeli judges have a break for elevenses at the bench).
The explanation is that making repeated decisions is mentally draining. This universal human trait causes judges in any legal system to take the less fatiguing course of affirming the status quo by denying the defendant’s requests. The dropping of the judicial blood sugar results in higher bail, longer sentences and higher SORA risk level classifications.
This is so obviously a violation of due process and equal protection that a solution must be found. Fortunately, we have one. It’s based on Graham Greene’s “Our Man in Havana,” where the hero challenges the villainous Captain Segura to a game of checkers using little bottles of liquor instead of pieces. Whoever jumped the other’s piece had to drink it, thereby leveling the playing field, not to mention the players.
The application to judicial proceedings is obvious. For every unfavorable ruling, the judge will be constitutionally required to eat a glazed donut. Whether from sugar high or sheer dread of having to eat another sticky donut, the judges will keep their decisions at the initial high level. The donuts will operate as rehabilitation, deterrence or at worst, incapacitation.