From The Washington Post:
A friend of mine was suffering such severe back pain that it was difficult for him to walk or stand. He consulted three doctors about the best course of treatment. The first was adamant that he needed surgery right away. The second advised my friend that he didn’t need surgery and that if he continued physical therapy, his condition would improve gradually over the coming months. The third prescribed strong steroids and recommended that, if his condition didn’t improve in a month, then he should have surgery. My friend followed the third doctor’s guidance, and it seems to be working. But he was mighty upset and confused by all those clashing perspectives. And he is still unsure whether that third doctor’s approach is the right one.
This undesirable variability in professional judgment is an example of noise, the ubiquitous and often-ignored human failing that is the focus of this well-researched, convincing and practical book. “Noise: A Flaw in Human Judgment” was written by the all-star team of psychologist and Nobel Prize winner Daniel Kahneman, former McKinsey partner and management professor Olivier Sibony, and productive legal scholar and behavioral economist Cass Sunstein. Kahneman won the Nobel Memorial Prize in Economic Sciences for his pathbreaking work with Amos Tversky on systematic biases in judgment. It prompted armies of psychologists and behavioral economists (including Sibony and Sunstein) to study the causes and remedies for many such faults, including overconfidence, stereotyping and confirmation bias — or seeking, remembering and placing excessive weight on information that supports our beliefs.
The authors kick things off by distinguishing between bias (systematic deviations) and noise (random scatter). The book then sustains a relentless focus on explaining and documenting the wallop packed by the simple and omnipresent error of noise — and what decision-makers can do about it. It blends stories, studies and statistics to make a compelling case that noise does at least as much damage as bias: undermining fairness and justice, wasting time and money, and damaging physical and mental health.
Kahneman and his colleagues show how unwanted variation in judgments (evaluations) and decisions (choices) creates “noisy systems” — which plague professionals including criminal judges, insurance underwriters, forensic scientists, futurists and physicians, who routinely make wildly varied judgments and decisions about similar cases. Systems are noisy, in part, because different professionals apply different standards. There is disturbing evidence, for example, that when multiple physicians evaluated identical cases for evidence of heart disease, tuberculosis, endometriosis, skin cancer and breast cancer, they agreed on diagnoses only about two-thirds of the time. In such noisy systems, errors add up rather than cancel each other out. As the authors put it, “If two felons who both should be sentenced to five years in prison receive sentences of three and seven years, justice has not, on average, been done.”
Systems are also noisy because, over time, the same professionals apply inconsistent standards. To illustrate, a study of 22 physicians who each examined the same 13 angiograms two times, several months apart, found that they disagreed with themselves between 63 percent and 92 percent of the time. To explain such swings, the authors use research on “occasion noise”: Fluctuations in a person’s mood, fatigue, physical environment and prior performance that are (objectively) irrelevant, yet shape judgments. Like the study titled “Clouds Make Nerds Look Good,” which examined 682 actual decisions by college admissions officers: They weighted applicants’ academic strengths more heavily on cloudier days and applicants’ nonacademic strengths more heavily on sunnier days.
Link to the rest at The Washington Post
PG will certainly second the notion of judges hearing criminal cases being subject to “noise” in the OP.
Search for “inconsistent sentencing” on Google. You will find that a great deal of research and scholarship devoted to studying why criminal defendants that are convicted of or plead guilty to seemingly similar crimes receive widely divergent sentences from judges who are acting under similar laws.
More severe sentences imposed on racial minorities than on white defendants are the hot button in this legal field. On average, racial minorities in a given jurisdiction receive harsher punishment than non-minorities for the same crimes.
However, female criminals of all races are treated much more leniently than male criminals of the same race who are convicted of the same crimes.
“In 2012 Sonja B. Starr from University of Michigan Law School found that, controlling for the crime, “men receive 63% longer sentences on average than women do,” and “[w]omen are…twice as likely to avoid incarceration if convicted”, also based on data from US federal court cases.” See SSRN
Having represented a judge in one case and a handful of attorneys in other cases in a past professional life, PG can assure you that going to law school or being elevated to the bench does not change a human into a machine.
Determining a suitable sentence for a criminal is anything but a precise process. There are zillions of factors that can come into play – far too many and far too subtle for any legislature to craft written legislation that addresses all of them.
Is the defendant remorseful or not? How remorseful or how not-remorseful? PG can attest that reading a defendant’s words as captured in a court transcript and watching and listening to the defendant as they speak is two different things.
Just as some people are better at fooling others when they are lying than other people, some people are better at conveying truthfulness than others, even when both tell the truth.
There are also different purposes for punishment. Simply punishing an individual for committing an evil deed is the most obvious. This is the simple application of the rule evil deeds must be penalized for fundamental justice in a society.
However, assuming that the defendant will be released from confinement at some future time, deterring that defendant from committing another crime is another purpose. Deterring other individuals from committing similar crimes is another purpose for punishment. Enforcing broad societal standards of behavior is another.
To take an extreme example, if everyone who exceeded the posted speed limit by five miles per hour or more were sent to prison for a minimum of 30 years, that would be quite a powerful deterrent. However, there is an inherent societal value that the punishment should fit the crime.
If our speeding driver received the same sentence as someone who killed another person with a knife, we would not feel that such a system was just and fair.
PG suggests that the “noise” described in the OP and what sounds like an interesting book is not the only reason why human judgment is complex to understand and assess fully.