The most important question when you walk into court? Who’s our judge?
Imagine facing a judge for the same crime in two different courtrooms. In one, you get one-year in prison. In the other? Ten years.
Now imagine that the same judge makes different decisions depending on whether it is morning or afternoon, or Monday rather than Wednesday, or they haven’t yet had lunch.
These are examples of what Nobel Prize winner Daniel Kahneman calls ‘noise’: variability in judgements that should be identical.
In his groundbreaking book Noise: A Flaw in Human Judgment, Kahneman revealed surprising patterns in judicial decision-making. Praised by The Financial Times as "fascinating and far-reaching”, his research showed just how human our justice system really is.
How Judges Make Sentencing Decisions: The Surprising Truth
Is the business of law completely logical? Hardly.
According to professor of psychology Stuart Sutherland, none of us are logical or rational, despite what we may think.
I have known distinguished barristers, eminent judges and educated elites from academia and the professions who have chain-smoked cigarettes like they were going out of fashion. This activity is profoundly illogical and completely irrational.
Kahneman’s research demonstrated something new. It showed that even experienced judges could reach dramatically different decisions when presented with identical cases.
In an ideal world this would be regarded as illogical, but it did show that judges -as humans- are not immune to irrationality.
In ‘Noise’, Kahneman helped explain why sentencing could vary so widely from courtroom to courtroom.
In one striking example a 1974 study of 50 judges setting sentences for identical (hypothetical) cases found that “absence of consensus [among judges] was the norm”.
And the sentences didn’t just differ slightly by judge: they varied wildly.
Depending on the luck of the judge lottery, the same heroin dealer was sentenced to anything between one and 10 years, a bank robber received sentences ranging between five and 18 years, while an extortionist faced anything between three years with no fine at all to 20 years plus a $65,000 fine.
Same case, same facts, vastly different outcomes. This variation in judicial decision-making shows how unpredictable legal outcomes could be.
How Time of Day Affects Judge Decisions: The Science Behind Court Timing
One of Kahneman's most fascinating discoveries involved something surprisingly simple: timing.
After analysing thousands of bail decisions, researchers found that judges were far more likely to grant bail early in the morning or just after their lunch break.
Even basic human needs - like hunger-could significantly impact major legal decisions.
But while the stats don’t lie, they don’t take account of other scenarios where, as lunchtime looms, a judge may warn a lawyer that they [the judge] “need to eat”.
This is a signal that whatever that lawyer wanted to get done before lunch, should probably wait.
If nothing else this is an example of where the person on the bench understands that they may not be their usual patient and thoughtful best if their stomach is slowly digesting itself.
Criminal Sentencing Variations: Same Crime, Different Time
When fifty-two judges were asked to sentence identical hypothetical theft cases, their decisions ranged from thirty days to five years in prison. This dramatic variation occurred despite every judge reviewing exactly the same case details.
To be fair, sometimes a judge will encounter a particular area of law that they excelled in as a lawyer before they were appointed to the bench. They are naturally going to view this case differently from their other colleagues, and that can mean different outcomes.
They’re not robots after all. In the end, this reality is key.
I knew of one older judge who lived with his elderly mother and cared for her. He was known to be a “modest sentencer” in most areas of law and few of his decisions were appealed as a result.
But if the defendant who appeared before him had broken into an elderly person's home the kindly old judge brought the guillotine down swiftly. Some cases have a special resonance and deserve the judicial mailed fist.
Quite right too.
Understanding Judicial Decision-Making
Distinguished United States federal judge Richard Posner, in "How Judges Think," explained that judges must balance multiple complex factors when making decisions:
Individual case circumstances
Rehabilitation potential
Public safety considerations
Deterrence effects
Precedent consistency
Those who can do, those who can't, criticise.
What does this look like in reality?
Well, it's not to say that judges don’t care what people write about them or their judgment's.
They do.
But Judge Posner explained that while most judges wanted to be perceived as “good” judges by academics they didn’t much care what academics thought of them either.
This was because they viewed academics as having no clue about the “aims and pressures” of being a judge and as a result regarded their criticisms as mostly uninformed and pointless.
While legal knowledge is crucial Posner argued that it was the ability to apply that knowledge effectively in different contexts that defined truly good judges.
Why Court Decision Analysis Matters
Understanding these patterns doesn't undermine our justice system - it helps strengthen it. Judges perform one of society's most challenging roles, making life-changing decisions while managing the same cognitive limitations we all face.
But we have to be practical. What is the law after all?
Is it a system where people on a bench rigorously consult a sentencing book before administering a penalty, regardless of a person’s circumstances?
Or is it a system where the wealthy can afford to appeal to a different judge if they’re not happy with the result?
“Law?” barked Cornelius Vanderbilt, one of the richest men of all time, “What do I care for law. Hain’t I got the power?”
If that ever became the norm judges would effectively become automatons: doling out penalties according to a pre-planned scale or app, without any input or assessment from them about the person’s circumstances.
They would effectively become ‘rubber stamps’, the kinds of judges who practice law in authoritarian countries. Do you want that? I doubt it.
That isn’t what we regard as law or justice. We all think that our cases are very important to us, and we would like the judge to look not just at sentencing guidelines so that they achieve “efficiency” (that dread, inhumane word beloved by accountants) but at us, at our particular circumstances which are unique to us.
Isn’t that what makes each of us different? If we want judges to treat us as individuals and not as numbers on a page, we have to expect variations in sentencing.
They Know
And its not as if judges don’t know about the variation in sentencing among them. Of course they do.
I once heard an appeal court judge refuse -twice- to allow a case to be transferred out of his court into another judge’s court on the grounds that it was “forum shopping” i.e. that the lawyer wanted the case dealt with by a more lenient judge.
Another judge convicted -unfairly in my view- a client of mine and with a rather cynical grin said to me: “you can appeal it if you want. You might get a better result”.
We did, and we did.
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Like referees, people always claim to want consistency in judges, but only when it applies to others.
When you or someone you love breaks the law, you immediately abandon your love of consistency.
Now you want to be treated differently, because in your mind, you practically deserve it. After all, you’ve never gotten so much as a parking ticket, so that’s justification enough in your eyes.
As irrational as this line of thought is, it’s not unusual.
The brain, according to Stuart Sutherland, is highly skilled at interpreting information, but this can sometimes lead to irrationality. It’s the kind of thinking that convinces smokers that serious health complications ‘happen to other people’, or that the law should treat them differently to others.
Welcome to the world of a judge.
Is there a silver lining in all this? Well of course there is. Kahneman's research was based almost exclusively on courts in the United States, and not Ireland.
We're obviously much different here.
Which is a relief...
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And if you do ever find yourself in court? Here's a tip backed by Nobel Prize-winning research: try to get your lawyer to schedule your case right after lunch – when judges are well-fed, some of them tend to be more lenient.
Although, if any of them read this, they might be wise to your ploy and decide to deal with you straight before lunch.
Best of luck…
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