In the NYT, immigration judges contemplate how biases might creep into the decisions they make:
In all, 336 people from 13 countries and even more ethnic backgrounds appeared in San Franciscoâ€™s immigration court recently over three days. All of them were facing possible deportation, because they either were in the United States illegally or had committed crimes serious enough to jeopardize their legal presence as noncitizens. One challenge facing Judge Marks was deciding whether to deport some of them immediately after they had testified. Another challenge was her own biases.
â€śYou have to go through some hypotheticals in your brain,â€ť said Judge Marks, wrestling with the weighty decisions she must make, the little time she has to make them and all the impressions she and her judicial colleagues form from the bench about the immigrants before them.
â€śWould I treat a young person the same way Iâ€™m treating this old person?â€ť she said. â€śWould I treat a black person the same way Iâ€™m treating this white person? This situation of rush, rush, rush as fast as we can go, itâ€™s not conducive to doing that.â€ť
The solution? Anti-bias training:
Now, as the country struggles with how these instinctive judgments shape our lives, the Justice Department is trying to minimize the role of bias in law enforcement and the courts. More than 250 federal immigration judges attended a mandatory anti-bias training session in August, and this summer the Justice Department announced that 28,000 more employees would go through a similar exercise.
This seems reasonable, but what about factors that influence decisions that go beyond the characteristics of the immigrant? Enter a recent (unpublished) paper by Daniel Chen:
I detect intra-judge variation in judicial decisions driven by factors completely unrelatedÂ to the merits of the case, or to any case characteristic for that matter. Concretely, I show that asylumÂ grant rates in U.S. immigration courts differ by the success of the court cityâ€™s NFL team on the nightÂ before, and by the cityâ€™s weather on the day of, the decision. My data including half a million decisionsÂ spanning two decades allows me to exclude confounding factors, such as scheduling and seasonal effects.Â Most importantly, my design holds the identity of the judge constant. On average, U.S. immigrationÂ judges grant an additional 1.5% of asylum petitions on the day after their cityâ€™s NFL team won, relativeÂ to days after the team lost. Bad weather on the day of the decision has approximately the opposite effect.Â By way of comparison, the average grant rate is 39%. In contrast, I do not find comparable effects inÂ sentencing decisions of U.S. District Courts, and speculate that this may be due to higher quality of theÂ federal judges, more time for deliberation, or the constraining effect of the federal sentencing guidelines.
Yikes. If it’s true, then there are all sorts of external factors which affect the fates of thousands of asylum seekers, some of whom are turned away because the judge is just having a bad day.Â This wouldn’t be the first paper to find that irrelevant, external factors influence judicial decisions. A recent paper by Ozkan Eren and Naci Mocan find similar effects (this time via college football – go figure) on decisions in juvenile courts. Others have found that judges are less likely to rule in the defendant’s favour when they are hangry.
Maybe judges should take some sort of mood test before they are allowed to review cases. Or maybe, despite what the folks at ProPublica think, it’s time to let the machines do the work for us.
Hat tip to Charles Kenny for the Chen paper.