Unfair

by Adam Benforado

  More research is needed into how various psychological dynamics play out across situations and how they interact when more than one is implicated in a real life case. The circumstances in which bias can creep in are numerous and diverse because of the nature of judicial decision-making: it is not just about ultimate outcomes and punishments. Vidmar, “The Psychology of Trial Judging,” 58. Judicial bias can appear at any stage in a criminal case, from admitting evidence and signing off on plea bargains, to ruling on objections during cross-examination and approving jury instructions, to allocating time for oral argument during appeal and granting habeas motions seeking the release of a prisoner. Vidmar, “The Psychology of Trial Judging,” 58.

  While some social scientists have: As with judges, we’ve always assumed that the danger with referees is conscious bias: people altering their judgments in exchange for a bribe, out of spite, or after being threatened. The poster boy for the biased ref is Tim Donaghy, who bet on NBA games that he worked, as well as passing on critical information about referees and players to professional gamblers. Howard Beck and Michael S. Schmidt, “N.B.A. Referee Pleads Guilty to Gambling Charges,” New York Times, August 16, 2007, http://www.nytimes.com/​2007/08/16/sports​/basketball/16nba.html​?ref=timdonaghy. And leagues have always been eager to portray bias by officials as rare and deliberate. Just as there are good, objective judges and bad, partisan judges, there are also good, objective referees who choose to adhere to the rules and bad, biased refs who choose to ruin the game for their own personal gain. According to this narrative, a handful of Donaghys in the system present the only threat: as former NBA Commissioner David Stern put it, “rogue, isolated criminal[s].” “Stern: Bet Probe ‘Worst Situation That I Have Ever Experienced,” ESPN.com, July 25, 2007, http://sports.​espn.go.com/​nba/news/​story?id=2947237. But this account does not hold up against the empirical evidence.

  The findings are staggeringly similar: See, e.g., Norbert Hagemann, Bernd Strauss, and Jan Leibing, “When the Referee Sees Red,” Psychological Science 19 (2008): 769; Alexander Kranjec et al., “A Sinister Bias for Calling Fouls in Soccer,” PLOS ONE 5 (2010): 1.

  Tennis officials, for instance: David Whitney et al., “Perceptual Mislocalization of Bouncing Balls by Professional Tennis Referees,” Current Biology 18 (2008): R947–49. More broadly, umpires, like judges, believe they are seeing the game exactly as it happens through unfiltered lenses and they are rarely in a position to understand that their particular perspective and situation may influence their judgments.

  The spot where an umpire perceives: Whitney et al., “Perceptual Mislocation of Bouncing Balls.” A similar issue arises in soccer. Trained referees are taught to observe the game following a diagonal path across the field, and a referee using a left-diagonal system will observe players moving into the offensive side of the field from a right-to-left orientation, while his linesmen, traveling along the sidelines, will observe players moving left to right. Kranjec et al., “A Sinister Bias,” 1–3. Why might this matter? Scientists have discovered that experimental participants call more fouls when considering pictures of left-moving soccer tackles as when looking at pictures of right-moving tackles. The likely reason has to do with familiarity: in the West, we read from left to right, and so things that occur right to left tend to be seen as atypical and disfluent. The end result is that, as with judges, a different perspective on the same events can lead to a different outcome.

  White umpires give white batters: Joseph Price and Justin Wolfers, “Biased Referees?: Reconciling Results with the NBA’s Analysis,” Contemporary Economic Policy 30, no. 3 (2012): 328, doi: 10.1111/j.1465-7287.2011.00268.x; Niels van Quaquebeke and Steffen R. Giessner, “How Embodied Cognitions Affect Judgments: Height-Related Attribution Bias in Football Foul Calls,” Journal of Sport and Exercise Psychology 32 (2010): 14–15; Hagemann, Strauss, and Leibing, “When the Referee Sees Red,” 769.

  Given that referees frequently have to make calls without all of the necessary information or in situations where the evidence that they have isn’t conclusive, it is no surprise that they take cognitive short cuts just like judges. Robert L. Askins, “The Official Reacting to Pressure,” Referee 3 (1978): 17, 18. Clearly, the fact that someone is a superstar doesn’t tell you whether he just threw a ball or a strike; but when we don’t know whether the pitch was inside or outside the strike zone, we may turn to the player’s stardom to give us an answer: it was a strike. Tobias J. Moskowitz and L. Jon Wertheim, Scorecasting: The Hidden Influences Behind How Sports Are Played and Games Are Won (New York: Crown Archetype, 2011), 19–20. The result is that, on the mound, aces are given bigger strike zones than nonstars, and champion sluggers are less likely to get a third strike called on them than low-percentage hitters. Moskowitz and Wertheim, Scorecasting, 19–20. The same is true in basketball, where stars are less likely to receive additional fouls when they have gotten into early trouble than nonstars. Moskowitz and Wertheim, Scorecasting, 21.

  Stranger and more troubling is the fact that white basketball referees appear to call relatively more fouls on black players than white players, and strike zones in baseball are partially defined by the race of the batter. Price and Wolfers, “Biased Referees?” 328. In one recent experiment, researchers found that although participants viewed black and white football players who “celebrated” after scoring as equally arrogant, black players were penalized for their actions at a greater rate. Erika Hall and Robert Livingston, “The Hubris Penalty,” Journal of Experimental Social Psychology 48 (2012): 899–904. According to the study’s authors, the likely explanation is that pride and arrogance are tolerated for those group members who possess high status (white players), but not for those with low status (black players). Black players face a “hubris penalty” that does not apply to their white counterparts. Much like with judges and police officers, racial cues seem to result in disparate treatment in sports, beyond the conscious awareness of the officials involved.

  In addition, as with judges who expect: Moskowitz and Wertheim, Scorecasting, 22–24; Kyle J. Anderson and David A. Pierce, “Officiating Bias: The Effect of Foul Differential on Foul Calls in NCAA Basketball,” Journal of Sports Sciences 27 (2009): 692–93. Again, the irony is that the great effort a person puts into trying to be neutral and objective can itself create bias. In basketball, the erroneous assumption that the number of fouls called on each team should be approximately equal in a fairly refereed game subtly influences the actions of those who are strongly motivated to appear fair. The larger the difference in fouls between two opposing basketball teams, the more likely the next whistle will be blown against the team with fewer fouls. Anderson and Pierce, “Officiating Bias,” 692–93. Whether it’s three fouls on the same team or three parole grants in a row, deviation from a preconceived vision of the pattern of objectivity sets off internal alarm bells, even though unequal distributions are statistically predicted. When an umpire or referee makes a clear mistake, the motivation to even things out becomes even stronger. So, investigators have found that when umpires erroneously call a strike a ball, they are more likely to call the next pitch a strike. Moskowitz and Wertheim, Scorecasting, 22–23. Make-up calls are real, although, for many officials, they do not feel that way at all.

  A related source of distortion involves the tendency to avoid blowing the whistle in critical situations. Moskowitz and Wertheim, Scorecasting, 24–30. Refs don’t want to risk being seen as introducing bias and so, across a range of sports—hockey, football, and basketball, included—they show a significant tendency to omit calling fouls where it is not absolutely clear in the final moments of a game. Moskowitz and Wertheim, Scorecasting, 24–30. Instead, they go ahead and let the players “play” and “determine their own destinies.” But, of course, that is neither fair nor an accurate description of what is happening: erroneously not calling an offensive foul that wins the game for one team is distorting the righteous outcome just as much as erroneously calling an offensive foul that loses the game for th
e same team.

  Finally, like judges, referees are not: Anderson and Pierce, “Officiating Bias,” 692–93; Moskowitz and Wertheim, Scorecasting, 138. We are a profoundly social species and none of us can just turn off the influence that other humans have on our decision-making. As with those who preside over our courts, sports officials will swear that they are not influenced by public perceptions, but the evidence suggests otherwise. Moskowitz and Wertheim, Scorecasting 156–65. In soccer, referees award fewer cards and more penalties to home teams and increase the amount of extra time at the end of a match when the home team is trailing and reduce it when they are ahead. Peter Dawson, et al., “Are Football Referees Really Biased and Inconsistent?: Evidence of the Incidence of Disciplinary Sanction in the English Premier League,” Journal of the Royal Statistical Society: Series A 170 (2007): 249; Matthias Sutter and Martin G. Kocher, “Favoritism of Agents—The Case of Referees’ Home Bias,” Journal of Economic Psychology 25 (2004): 467–68; Luis Garicano, Ignacio Palacios-Huerta, and Canice Prendergast, “Favoritism Under Social Pressure,” The Review of Economics and Statistics 87 (2005): 209. Moreover, the bigger the crowd and the closer they are to the field, the larger the home-team bias. Moskowitz and Wertheim, Scorecasting, 160. The same trends are evident in basketball, football, and baseball: at away games, basketball players have an increased probability of being called for fouls and traveling, football players face a heightened likelihood of being penalized, and baseball players are at a disadvantage in calls related to stealing bases and turning double plays. Moskowitz and Wertheim, Scorecasting, 160.

  Most would vigorously deny that: Justice Scalia is a case in point of how judges almost never see themselves as acting in a biased fashion. He counts his statement refusing to recuse himself from a case involving Vice President Cheney, with whom he’d gone duck hunting, as “maybe the only heroic opinion [he] ever issued.” As he explained, “I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.” Jennifer Senior, “In Conversation: Antonin Scalia,” New York, October 6, 2013, http://nymag.com/​news/features/​antonin-scalia-2013-10/.

  Indeed, most would feel quite confident: Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 43.

  Legal training, experience, and the rules: Vidmar, “The Psychology of Trial Judging,” 58.

  Certainly, precedent and statutory laws can act: Vidmar, “The Psychology of Trial Judging,” 58.

  Justice Antonin Scalia’s textual originalism: Richard A. Posner, “The Incoherence of Antonin Scalia,” New Republic, August 24, 2012, http://www.tnr.com/​article/magazine​/books-and-arts/106441​/scalia-garner-reading-​the-law-textual-​originalism?page=0,0.

  A judge’s decision, then, turns on: Antonin Scalia and Bryan A. Garner, interview by Stephen Adler, Thompson Reuters Newsmaker, September 17, 2012.

  With seemingly no room for personal: Textual originalism, according to Justice Scalia and his coauthor, Bryan Garner, is the only “objective standard of interpretation even competing for acceptance.” Posner, “The Incoherence of Antonin Scalia.”

  The Fourth Amendment begins: U.S. Const. amend. IV.

  Is using a thermal-imaging device: Kyllo v. United States, 533 U.S. 27 (2001).

  Is placing a GPS tracking device: United States v. Jones, 132 S. Ct. 945 (2012).

  In situations like this, a judge is free: Posner, “The Incoherence of Antonin Scalia.”

  This is particularly evident in: Allison Orr Larsen, “Confronting Supreme Court Fact Finding,” Virginia Law Review 98 (2012): 1255–1312; Josh Rothman, “Supreme Court Justices: Addicted to Google,” Boston Globe, June 7, 2012, http://www.boston.com/​bostonglobe/​ideas/brainiac/2012​/06/supreme_court_j.html.

  The common portrayal is that: Adam Liptak, “Seeking Facts, Justices Settle for What Briefs Tell Them,” New York Times, September 1, 2014, http://www.nytimes.com/​2014/09/02/us/politics​/the-dubious-sources-of-some-supreme-court-facts.html.

  But members of the Court actually: Larsen, “Confronting Supreme Court Fact Finding”; Rothman, “Supreme Court Justices.”

  Rather than simply relying on: Larsen, “Confronting Supreme Court Fact Finding”; Rothman, “Supreme Court Justices.”

  Indeed, in surveying the 120 most: Larsen, “Confronting Supreme Court Fact Finding,” 1262.

  If a case comes down to: United States v. Sykes, 131 S. Ct. 2267, 2270 (2011).

  In United States v. Sykes, both: Larsen, “Confronting Supreme Court Fact Finding,” 1266. As Justice Kennedy wrote in the majority opinion, “Although statistics are not dispositive, here they confirm the commonsense conclusion that Indiana’s vehicular flight crime is a violent felony.” Sykes, 131 S. Ct. at 2274. So where did these important statistics come from? They did not appear in the briefs or in the record from the court below—rather, they were found by the justices and their clerks. Larson, “Confronting Supreme Court Fact Finding,” 1266–67.

  Isn’t this precisely what we want: The Supreme Court is faced with a caseload that gets more diverse and specialized each year. If a justice does not feel he or she possesses enough knowledge to make an important decision, shouldn’t he or she seek out additional information? The Federal Rules of Evidence take just such a solicitous view of this type of “in house” fact finding, placing no restrictions on the practice. Larsen, “Confronting Supreme Court Fact Finding,” 1267–68.

  In many cases, the “facts”: Larsen, “Confronting Supreme Court Fact Finding,” 1277–86. This is particularly noteworthy because citations and sources are uniquely important to the law. In the United States, the law’s authority relies, in part, on the perceived legitimacy of the individuals and institutions charged to uphold and enforce it, but also, to a great extent, on the reasoning that those individuals and institutions employ. The facts carry a great amount of power. They may be used to persuade readers or to make a shaky proposition seem more solid. They may be employed to win over sympathetic colleagues or undermine the positions or reasoning of adversaries. Sometimes the particular fact that a judge “uncovers” is essential to the outcome of the case—indeed, it may resolve the key question at issue. Larsen, “Confronting Supreme Court Fact Finding,” 1277–86.

  Judges, just like the rest of us, tend: Ezra Klein, “Unpoular Mandate,” The New Yorker, June 25, 2012, http://www.newyorker.com/​reporting/2012/​06/25/120625fa_fact_klein​#ixzz1yF1uS1MZ. In conducting a “common sense” parsing of a statute or case, a judge may be steered quickly and surely to what he believes and expects to be true, as he ignores, rejects, and overlooks contradictory evidence. Posner, “The Incoherence of Antonin Scalia.”

  When judges do research: Larsen, “Confronting Supreme Court Fact Finding,” 1300.

  The underlying drive is to bolster: Christopher H. Achen and Larry M. Bartels, “It Feels Like We’re Thinking: The Rationalizing Voter and Electoral Democracy” (prepared for presentation at the Annual Meeting of the American Political Science Association, Philadelphia, August 30–September 3, 2006), http://www.princeton.edu/​~bartels/​thinking.pdf; Klein, “Unpopular Mandate.”

  But, in fact, having more information: Achen and Bartels, “Rationalizing Voter and Electoral Democracy”; Klein, “Unpopular Mandate.”

  When a pair of political scientists: Achen and Bartels, “Rationalizing Voter and Electoral Democracy,” 12; Klein, “Unpopular Mandate.”

  A similar effect was found: Klein, “Unpopular Mandate.”

  With more information on hand: Klein, “Unpopular Mandate.”

  Our analytical skills can be distorted: Dan M. Kahan et al., “Motivated Numeracy and Enlightened Self-Government,” The Cultural Cognition Project Working Paper No. 116 (2013); Keith O’Brien, “Do the Math? Only if I agree with It!” Boston Globe, October 20, 2013, http://www.bostonglobe.com/​ideas/2013​/10/20/math-only​-agree-with/​dNXiuubRILEUqtQ8IzUqEP/story.html.

  In one set of experiments, researche
rs looked: Kahan et al., “Motivated Numeracy,” 25–26.

  On the skin-rash evaluation: Kahan et al., “Motivated Numeracy,” 21; O’Brien, “Do the Math?”

  But when participants were asked to: Kahan et al., “Motivated Numeracy,” 21–24; O’Brien, “Do the Math?”

  When the data pointed to a conclusion: Kahan et al., “Motivated Numeracy,” 25–26.

  Given numbers suggesting that crime decreased: Kahan et al., “Motivated Numeracy,” 21–24; O’Brien, “Do the Math?”

  The reverse was true for liberals: Kahan et al., “Motivated Numeracy,” 21–24; O’Brien, “Do the Math?”

  Despite knowing how to use: Kahan et al., “Motivated Numeracy,” 24–28; O’Brien, “Do the Math?”

  Indeed, when Justice Elena Kagan: Larsen, “Confronting Supreme Court Fact Finding,” 1275; Sykes, 131 S. Ct. at 2290 n. 3 (Kagan, J., dissenting).

  Look at recent opinions and you’ll see: Larsen, “Confronting Supreme Court Fact Finding,” 1300. Sure, there is the New England Journal of Medicine, the New York Times, and the website of the FDA, but so also Musicweek, the Arkansas Gazette, Sporting News, and the Rape, Abuse, and Incest National Network. Larsen, “Confronting Supreme Court Fact Finding,” 1286–89.