« Former drug chain CEO gets 3-year (way-below-guideline) prison term | Main | Peculiar(?) concurrence in Eighth Circuit panel's affirmance of top-of-guideline sentence »

August 23, 2011

Is "decision fatigue" a big problem in sentencing decision-making? If so, what should be done?

The question in the title of this post are prompted by this fascinating piece that appeared in this past weekend's New York Times magazine discussing the problems posed by "decision fatigue."  Notably, the piece began with a compelling sentencing story:

Three men doing time in Israeli prisons recently appeared before a parole board consisting of a judge, a criminologist and a social worker.  The three prisoners had completed at least two-thirds of their sentences, but the parole board granted freedom to only one of them.  Guess which one:

Case 1 (heard at 8:50 a.m.): An Arab Israeli serving a 30-month sentence for fraud.

Case 2 (heard at 3:10 p.m.): A Jewish Israeli serving a 16-month sentence for assault.

Case 3 (heard at 4:25 p.m.): An Arab Israeli serving a 30-month sentence for fraud.

There was a pattern to the parole board’s decisions, but it wasn’t related to the men’s ethnic backgrounds, crimes or sentences.  It was all about timing, as researchers discovered by analyzing more than 1,100 decisions over the course of a year.  Judges, who would hear the prisoners’ appeals and then get advice from the other members of the board, approved parole in about a third of the cases, but the probability of being paroled fluctuated wildly throughout the day.  Prisoners who appeared early in the morning received parole about 70 percent of the time, while those who appeared late in the day were paroled less than 10 percent of the time.

The odds favored the prisoner who appeared at 8:50 a.m. — and he did in fact receive parole.  But even though the other Arab Israeli prisoner was serving the same sentence for the same crime — fraud — the odds were against him when he appeared (on a different day) at 4:25 in the afternoon.  He was denied parole, as was the Jewish Israeli prisoner at 3:10 p.m, whose sentence was shorter than that of the man who was released.  They were just asking for parole at the wrong time of day.

There was nothing malicious or even unusual about the judges’ behavior, which was reported earlier this year by Jonathan Levav of Stanford and Shai Danziger of Ben-Gurion University.  The judges’ erratic judgment was due to the occupational hazard of being, as George W. Bush once put it, “the decider.”  The mental work of ruling on case after case, whatever the individual merits, wore them down.  This sort of decision fatigue can make quarterbacks prone to dubious choices late in the game and C.F.O.’s prone to disastrous dalliances late in the evening.  It routinely warps the judgment of everyone, executive and nonexecutive, rich and poor — in fact, it can take a special toll on the poor.  Yet few people are even aware of it, and researchers are only beginning to understand why it happens and how to counteract it.

Decision fatigue helps explain why ordinarily sensible people get angry at colleagues and families, splurge on clothes, buy junk food at the supermarket and can’t resist the dealer’s offer to rustproof their new car.  No matter how rational and high-minded you try to be, you can’t make decision after decision without paying a biological price.  It’s different from ordinary physical fatigue — you’re not consciously aware of being tired — but you’re low on mental energy.  The more choices you make throughout the day, the harder each one becomes for your brain, and eventually it looks for shortcuts, usually in either of two very different ways.  One shortcut is to become reckless: to act impulsively instead of expending the energy to first think through the consequences.  (Sure, tweet that photo! What could go wrong?)  The other shortcut is the ultimate energy saver: do nothing.  Instead of agonizing over decisions, avoid any choice.  Ducking a decision often creates bigger problems in the long run, but for the moment, it eases the mental strain. You start to resist any change, any potentially risky move — like releasing a prisoner who might commit a crime.  So the fatigued judge on a parole board takes the easy way out, and the prisoner keeps doing time.

August 23, 2011 at 09:50 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2015434c17eb0970c

Listed below are links to weblogs that reference Is "decision fatigue" a big problem in sentencing decision-making? If so, what should be done?:

Comments

"what should be done?"

Snack? From further down in the story: "The benefits of glucose were unmistakable in the study of the Israeli parole board. In midmorning, usually a little before 10:30, the parole board would take a break, and the judges would be served a sandwich and a piece of fruit. The prisoners who appeared just before the break had only about a 20 percent chance of getting parole, but the ones appearing right after had around a 65 percent chance. The odds dropped again as the morning wore on, and prisoners really didn’t want to appear just before lunch: the chance of getting parole at that time was only 10 percent. After lunch it soared up to 60 percent, but only briefly."

Posted by: Gritsforbreakfast | Aug 23, 2011 10:36:45 AM

I don't have access to the actual paper, but there are good reasons to question the conclusions. First, scheduling of a hearing is not necessarily independent of the merits. The easy cases may be put first. Second, I do not know the practices of the Israeli parole board, but I suspect that they review the case folders prior to the hearing and have largely made up their minds before the hearing. This would seem to undermine the proposed causal connection between time of day and decision. Any valid study would have to at address these two issues.

Posted by: James | Aug 23, 2011 3:24:22 PM

If in fact there is decision fatigue, the answer is to put off making decisions until you're not fatigued. Rocket science this is not.

Posted by: Bill Otis | Aug 24, 2011 11:11:09 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB