« Front-line advocate's response to interview with former White House Counsel Neil Eggleston about Prez Obama clemency efforts | Main | Justice Sotomayor (joined by Justice Breyer) authors lengthy dissent to denial of cert in Alabama lethal injection protocol challenge »

February 20, 2017

Awakening to a sleepy sentencing debate: do tired federal judges sentence more harshly?

I just came across this pair of notable papers exploring empirically whether and how less sleep might mean more punishment from federal judges:

"Sleepy Punishers Are Harsh Punishers: Daylight Saving Time and Legal Sentences" by Kyoungmin Cho, Christopher Barnes, and Cristiano Guanara

Abstract: The degree of punishment assigned to criminals is of pivotal importance for the maintenance of social order and cooperation.  Nonetheless, the amount of punishment assigned to transgressors can be affected by factors other than the content of the transgressions.  We propose that sleep deprivation in judges increases the severity of their sentences.  We took advantage of the natural quasi-manipulation of sleep deprivation during the shift to daylight saving time in the spring and analyzed archival data from judicial punishment handed out in the U.S. federal courts. The results supported our hypothesis: Judges doled out longer sentences when they were sleep deprived.

"Are Sleepy Punishers Really Harsh Punishers?: Comment" by Holger Spamann

Abstract: This comment points out four severe reservations regarding Cho et al.’s (PS 2017) finding that U.S. federal judges punish more harshly on “sleepy Mondays,” the Mondays after the start of Daylights Savings Time. First, Cho et al.'s finding pertains to only one of at least two dimensions of harshness, and the opposite result obtains in the second dimension. Second, even within the first dimension, Cho et al.'s result is statistically significant only because of a variable transformation and sample restrictions that are neither transparent in the article nor theoretically sound. Third, reanalysis of the data with superior methods reveals no significant “sleepy Monday” effect in the years 1992- 2003. Fourth, sentences were on average shorter on “sleepy Mondays” out of sample, namely in 2004-2016.

February 20, 2017 at 12:54 PM | Permalink


Sleepiness if a major factor in adverse events in our nation. I would have guessed an increase in inaccurate sentencing, in both directions would be the result. It is a sign of bias that the opposite rate, of too lenient a sentence was not studied. Basically, sleepy or sleep deprived people are as impaired as alcohol intoxicated people. I may send a similar letter to my local judicial review board, based on these stories.

I am trying to address this problem, and wrote the following to the professional standards division of a local police department. I am not interested in bullying the police. They are already beset by lawyer over-regulation. I may sue the accrediting agencies of the professional standard divisions for guideline maker liability for several violations of federal law and common sense practices.

"I would appreciate a brief meeting, mostly to listen to your side of the story, and to your concerns and objections to a change in Department policy on sleep. I do not want to be advocating any change with a naïve and incomplete information about the situation.

If you wish, I can provide information about sleep for your review.

1) Famous disasters involving sleep, including the destruction of the space shuttle, the Challenger;

2) sleepy people are as impaired as legally intoxicated people on standardized tests of performance, such as on driving simulators (would you allow a visibly intoxicated officer to get into a department car or to answer a call?);

3) the department itself causes sleep problems by requiring night shift officers to testify in the daytime;

4) the department punishes sleepy officers, inducing a cover up of the problem rather than a solution to it;

5) it is unknown if sleep is a factor in adverse police incidents; for example, it is unknown if the officers were sleepy when they blasted a law abiding black immigrant, taking a wallet out of his pocket; and NYC had to pay $millions in compensation; but the incident was in the middle of the night.

I did receive a copy of your rule on fitness for duty. I lost my copy, and would appreciate another copy. As I recall, it requires that officers arrive fit for duty. I would like to change it to a more realistic, real world wording.

Officers may self report sleepiness, with impunity. If a supervisor discovers sleepiness, sanctions could take place. The officer should clock out, go to a car or elsewhere and try to go to sleep fully for a minimum of a half an hour. If refreshed, clock back in, return to work.

If duty requires that officers respond despite being sleepy, they may have a dose of prescribed Modafinil, 200 mg, a medication FDA approved for shift worker sleep disorder.

In future investigations by your division, you will include a question about the alertness of the officers at the time of the incident. You will then add up the fraction of incidents involving impairment from sleepiness.

I do not have an easy answer to thinness of coverage, and now we are having sleeping officers, out of circulation. That is why I would like to hear your side of the story."

I have legal standing to sue on behalf of police officers.

(I have always wanted to loudly shush a librarian, and to tell the police they are breaking the law. I have shushed a librarian loudly speaking on the phone, and now this matter.)

Posted by: David Behar | Feb 20, 2017 4:45:07 PM

Falls into the "so what?" category.

Posted by: federalist | Feb 21, 2017 9:28:02 AM

Fed. The study design is convenient and easy, but quite silly. People are not impaired by an hour's loss of sleep.

However, judges are middle age or older. They are likely to be sedentary and overweight. Those are risk factors for high rates of sleep disorders. Sleep disorders cause daytime sleepiness. Consider the sleepy person to be as impaired as the legally intoxicated person, physically and mentally. Would it be trivial if a judge were visibly intoxicated on the bench? It is just as important if the judge is not getting refreshing sleep.

A better design would have been to send Epworth Sleepiness Scales to a random sample of judges. It contains 8 questions, and takes less than a minute, longer if you are sleepy. Then, try to call the judges not returning it, and assuring them of the confidentiality of the answers.

You may have heard of famous sleep involved catastrophes.

Three Mile Island
Gas Leak in Bhopal, India
Chernobyl Nuclear Disaster
Exxon Valdez Oil Spill
Star Princess Cruise Ship Grounded
Michigan Train Wreck

You probably did not hear about the administrator who decided to fly the space shuttle, Challenger. He did so despite warnings of his engineers, the O rings had not been tested below 53 degrees, and it was 47 degrees. He made that horrendous decision after 2 hours of sleep.

People concerned about drunken conduct and crashes should be equally concerned about sleepiness.

I have proposed the replacement of judges with robots running legislatively approved algorithms. Their major decisions should be reviewed by human beings, but only from the jury pool, to insure real equity and common sense. No lawyers allowed.

For perspective, chess has 37 possible moves, and, of course, computers have beaten all humans. Go, the Chinese board game, has a billion possible moves. A computer just beat the best player. It made a move the player said no human could have conceived of. The number of choices open to a judge are much more limited.

Replacement by robots would be easy. It would end the judge deficiencies about which I repeatedly complain. It would replace the feelings of rent seeking, self dealing lawyers with the uniform decisions of a legislature, accountable to the public every election. In addition, robots are not slow shuffling, lazy assed government workers, taking 4 years to render decisions due to extreme stupidity and laziness. Their decisions and the logic used would be rendered in 4 seconds. Cars are 100 better than a horse, in every way, including intelligence. The same advantageous ratio would apply to judging robots.

Posted by: David Behar | Feb 21, 2017 9:57:13 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