A question of bias

I recently got an e-mail from a very bright law school graduate who is studying for the bar this summer.  Ryan had a question about judicial bias and he gave me two examples of cases that caused him concern.  In both cases, he suggested that the judge or judges made oral or perhaps written statements that showed a preference for state actors.  He asked: Do you ever have occasion to employ such language? What salutary purpose might such expressions have?

I asked Ryan if I could reprint his e-mail and use it for this blog post.  He was kind enough to give me permission to do so.  I have edited the e-mail slightly to remove identifiers and for clarity.   Why did I remove identifiers?  I did so because I am not comfortable writing about bias and real cases where I don’t personally have more detail.

So, the following reprints Ryan’s email.  After that, I try to answer Ryan’s questions while adding a few additional thoughts.  With a big “thank you” to Ryan, here is his e-mail:

Dear Judge Kopf:

I’m a recent law school graduate studying for the bar. While that takes up much of my time, I have been an avid read of law blogs for a couple of years now and have been able to keep up with many of them. I only recently found yours. I have already recommended it to several friends and could go on and on about how great it is—a breath of fresh air, a rare perspective, and so on. It is all these things and more. But tonight I write with a question (or a series of related questions). If you have tim to answer, I would be very grateful.

What are your thoughts of judicial expressions of bias in favor of the government? (Bias is a loaded term I know, but I think it is the correct term here. Please read it as a matter-of-fact description rather than an accusation.)

I provide two examples. Each is of a different variety.

1.) During the sentencing of two police officers who perjured themselves while endeavoring to get a conviction.  Describing his sentencing decision as among the most difficult a judge could face, [the judge] called the officers’ conduct “regrettably shameful” but said he also took into account the careers and lives they had led.

. . .

Regrettably, I don’t have the transcript, but the inference seems clear. Sentencing these defendants was hard because they were officers of the law. I doubt it was the crime, perjury, that made the sentencing decision do difficult. Coupled with the light sentence, this seems a case where not only was there an expression (admission? recognition?) of bias, but it likely affected the outcome.

2.) In [Inmate[s] v. Prison], after describing in some detail brutal practices within a maximum security provision that resulted in serious injuries to a number of prisoners [the judge said or wrote]:

While the Eighth Amendment will countenance prisons that are restrictive, and even harsh, it does not permit the pattern of needless and officially sanctioned brutality that has invaded operations at [the prison]. Not only have plaintiffs established a pattern of excessive force . . . that has caused sufficient harm to demonstrate the “infliction of pain” on a classwide basis, but they have also shown that this pattern is attributable, not to inadvertence or mistake, but to defendants’ deliberate indifference and knowing willingness that harm occur. It is a conclusion we do not reach lightly. On the contrary, it is with considerable reluctance and regret that we find violations of this nature within an institution of our state. We are persuaded, however, that the testimonial and documentary evidence permit no other result.  [Emphasis added by Ryan]

Here the judge expressly states that the defendant’s status as “an institution of [his] state” affected his judgment.

. . . . I do not understand the intended function of either of these expressions of bias. (I don’t like the term I’ve coined; I’m sticking with it for consistency’s sake.) I would guess that such statements undermine the public’s confidence in the judiciary as an independent branch.

Do you ever have occasion to employ such language? What salutary purpose might such expressions have?

Thanks for taking the time to read this e-mail and again, in advance, if you are able to respond.


– Ryan

Initially, I should stress that I cannot discuss in this post all of the implications raised by Ryan’s questions because of space and time limitations.  Moreover, I am writing very plainly for the sake of clarity, and I will undoubtedly over-simplify things.

So, what follows are my responses to Ryan’s thoughtful questions:

*From a legal rule perspective Ryan, your conception of bias, at least in the federal courts, is broader than the conception of bias that exists in federal law.  What a judge writes or says about a case is almost never enough to show bias.  This is because the Supreme Court has recognized that judges are human beings with life experiences and foibles that all human beings must labor under. See, e.g.Liteky v. United States, 510 U.S. 540, 555 (1994) (“Not establishing bias or partiality, however, are expressions . . . that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display.”)  Thus, the terms “bias” and “prejudice” as used in the federal statutes connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate (1) either because it is undeserved or (2) because it rests upon knowledge that the subject ought not to possess or (3) because it is excessive in degree. In a similar vein, the remarks must display a deep-seated favoritism or antagonism that would make fair judgment impossible.  For an example of an alleged statement that would show bias, consider the statement that was alleged to have been made by the District Judge in Berger v. United States, 255 U.S. 22 (1921), a World War I espionage case against German-American defendants.  The judge was alleged to have said or written: “One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans” because their “hearts are reeking with disloyalty.” Id., at 28 (internal quotation marks omitted).  So, legally speaking, judicial “bias” in the federal courts, when based upon what the judge says or writes, has got to be so plain and one-sided that it is obvious that a “fair judgment is impossible.”

*Ryan, I used to have a “sticky note” on the bench that said simply “shut up.” That reminded me that I should be very careful what I said from the bench.  I used a “sticky note” so I could pull it off the bench and ignore my own admonition.  I will provide you with an example of a remark I made that got a lot of press and pissed off a bunch of doctors and med student.  I had several related tax cases where doctors bought into bogus tax shelters being recommended by their CPA.  They were prosecuted criminally.  While I sent the CPA to prison, I gave all the doctors probationary sentences.  But, in so doing I criticized the “entitlement mentality” of physicians and I suggested that medical schools should teach young doctors to check their big egos at the door when they leave the medical suite and file their tax returns.  Would I have been better off to shut up?  I don’t know.  Here is my rough rationale: Understand that the government was seeking prison terms for these doctors, and I supposed that members of the public would view my sentences as far too lenient, and as a result I wanted to be clear that I found the activities of the doctors to be reprehensible.  What especially concerned me was that young medical students might think they were entitled to a “pass” if they screwed with their IRS.  Because general deterrence is a proper function of federal criminal sentencing, I thought the part of my remarks that caught the attention of the press was appropriate when measured against everything else I did and said at sentencing.  For example, I made one doctor practice in a hospital that cared for poor people in Saipan where he would receive a salary roughly one-fourth of that he would otherwise make in the mainland US.  So, the “piggish” doctor was going to “do time” serving others. Did my remarks show that I was biased for or against doctors?  That’s for you to decide.

*Yes, there are times when I use statements such as the ones you allude to either (1) because I am consciously and honestly intending to explain myself or (2) because I am a human being and the case has presented me with facts that, like chiggers, make me break out into verbal hives.

* Ryan, regarding the cop/perjury case, realize that cops who are required to serve prison time do “much harder” time than the normal offender.  If you believe that prison should be equally unpleasant for all, but not especially unpleasant for some, then this bit of legal realism is proper for a judge to consider when sentencing a cop. That is why the Supreme Court has recognized in the federal system that a district court acted within its discretion in considering police officers’ high susceptibility to abuse in prison when imposing a sentence less harsh than called for under the Guidelines.  Koon v. United States, 518 U.S. 81 (1996) (this is the Rodney King case that caused huge turmoil  in California).

*As for the judge’s remarks about “being one of the most difficult,” I really don’t see bias of any type in that remark even if you define bias very broadly.  In the real world, many judges (including me) view police officers, prosecutors, criminal defense lawyers, corrections officers, probation officers and the like as a part of the same “team.”  That is, these actors are all supposed to be committed to the same goal of administering the law within the rules.  When they disappoint and subvert our system, it is truly very painful for a judge who venerates the law.  So, considering the statement that sentencing cops was “among the most difficult a judge could face,” I took that as a lament for the harm done to the system by people the judge previously respected.  If I were a defense lawyer, I might well conclude upon hearing the judge’s words that my cop-defendant best be retrieving his toothbrush in preparation for the cell doors slamming shut for a long, long time. That the decision was more lenient, does not necessarily suggest bias to me.  (I am not saying your perception was unreasonable, I am only suggesting that the judge’s statement did not clearly suggest to me that the judge was a cop groupie.)

*As for the prison case, I don’t see evident bias there either.  While reasonable minds can differ, my experience suggests, and I frequently imply in my opinions, that most prison warders are honorable and professional people who do not consciously allow the abuse of inmates. (Incidentally, the substantive law has a similar presumption.)  I acknowledge that this perception may be entirely wrong.  Indeed, the judge in your example seems to have recognized that his or her similar perception was not borne out by the facts of the case.  As long as the judge can set aside his or her experiences in the affairs of life, and judge the case on the facts presented to the judge–rather than solely on the judge’s world view–I see no bias of the kind we ought to be worried about.

*Finally, where it is appropriate, I want judges to be transparent when they speak or write.  Ryan, I ask that you read an earlier post entitled “Orwell lives” regarding the use of language to obscure what judges are really doing.  In short, it is a frightening task for judges to express honestly their reasons for making one decision rather than another because their words can so easily be misunderstood or misconstrued.  Nonetheless, I would rather have judges be more frank (when they can be) as opposed to expressing their decisions in language that makes their reasoning obscure but “safe” from claims of bias or other criticisms.

So, Ryan, your questions are good ones.  Please take my views with a grain of salt.  Perhaps you are right, and the judges in your cases showed bias.  For me, I come to the opposite conclusion.

All the best.


24 responses

  1. I think its important that a Judge take into account the “fact” that police are an institution of the state. I really didn’t see in Ryan’s description what I would call an exercise of bias. That a police officer has done good while an institution of the state is an important consideration. That he abused state authority to do harm is also important. That we demand and expect authority granted by the state not to be abused is a reality and a fact. I think this Judge’s “reluctance” to find violation of state authority is not a true “reluctance”. His statement was a product of two factors: 1) It is more an expression of his regret than his reluctance, and 2) The use of the word “reluctance” would also tend to show that he understands the complexities involved in an arrest and how it is important to understand the policeman’s side of the story. Having considered all that thoroughly, he found there was no justification. A perfectly properly done and thorough analysis.

  2. That a police officer has done good while an institution of the state is an important consideration.

    Indeed. We’re entitled to hold government officials, including police, to higher standards than “civilians.” However, that does not run to ignoring a cop’s performance record, any more than a “civilian’s” exemplary life should be disregarded (and it is not, in particular in that case), when determining sanctions given conviction.

    One could argue that your community service penalties were too light (biased?), but I think only in the number of hours required (and that’s a fairly trivial quibble). There are a number of ways to make restitution for a crime. One involves repaying the cheated victim the monies owed, and one involves “repaying society” through a period of confinement.

    However, I think a more productive version of the latter restitution often is community service. How would a doctor sitting in jail benefit society beyond the limited-time separation of the miscreant from the society he abused? I think serving the cheated society–even if remotely, by serving a sorely disadvantaged segment of that society–is a far better use of that form of retribution. Thus, community service in lieu of lengthy jail terms does not, of necessity, demonstrate a bias in favor of the miscreant or the miscreant’s status as a government official.

    Eric Hines

  3. Thanks for writing. Your parsing of the judge’s use of the word “reluctance” was interesting and particularly insightful.

    All the best.


  4. Thanks, you nicely captured many of the reasons for my sentence. But, what I was trying to illustrate is that my oral comments–about doctors being piggish and entitlement-minded with big egos–could be perceived or construed as “biased.” I wanted to provide Ryan with a concrete example of the danger of placing too much stock in snippets of a judge’s remarks at sentencing.

    All the best.


  5. …or even with the full transcript and such remarks in context. Saying a newly convicted miscreant is a puddle of sewage for his misdeed(s), or saying a whole collection of individuals are a cesspool because one of them has proven to be misbehaving, isn’t proof of much of anything.

    The damage there is limited to the (possible) creation of an opportunity to appeal and exposure to the “need” to defend the remarks at that appeal. And that’s the only outcome of a perception of bias. It seems to me that that’s the danger Ryan needs to understand–and to not conflate that political risk with an actual occurrence of bias.

    Remarks themselves aren’t evidence of bias or objectivity; that evidence can be found only in the actions following the remarks. Which is why I said that a seemingly light sentence following excoriation of a convict doesn’t prove bias.

    Eric Hines

  6. Thanks so much for the thorough answer to my question, Judge Kopf.

    I should have more clearly pointed out that I was not referring to legal bias. I was using the word in its ordinary, literal sense. And yes, of course, such bias in various shades and to various degrees is inevitable in all cases, judges being human. What it not inevitable is its acknowledgment and apparent legitimization by words of the court. You mention honesty and frankness as justifications, and that makes sense. I’d agree that these things are valuable for their own sake, meaning there is at least some benefit to an acknowledgment that the status of the defendant has affected the analysis.

    As that last sentence may suggest, I do want to take some time to discuss why, contrary to the consensus here, I find the statement in the prison case to be acknowledgments of bias. (And again, I am not referring to legal bias—just the ordinary bias all judges are stuck with.) (I was going to do the same for the criminal case as well, but the discussion got too long, and I didn’t want to drag readers through the weeds. Suffice to say, I wish I’d included in my original question that the statements were couple with a light sentence—community service only.)

    As an initial matter, I find Dean (sdoar)’s parsing unpersuasive. I mean, he could be correct. But the judge used the words both reluctant and regret. An interpretation that essentially requires the reader to read the word “reluctant” out of the passage is suspect right off the bat. That the given interpretation insists reluctance instead means “regret” is doubly unlikely given that the judge also uses the word regret. It seems pretty clear that he is expressing two different sentiments. Finally, reluctance as related to “complexities involved in an arrest and how it is important to understand the policeman’s side of the story” has no bearing at all here in this civil case regarding alleged Eighth Amendment violations. Thus, “reluctance” here probably means reluctance—Orwell would be relieved.

    The standard of proof in the case is preponderance of the evidence. But does the judge speak in language of more likely than not? No. Instead the judge highlights his regret and reluctance to find a violation and then concludes that “the testimonial and documentary evidence permit no other result.” Thus, it seems to me that the judge superimposed a higher standard of proof on the defendant here. As a thought experiment, imagine if this language were employed in a Supreme Court opinion. Would not briefs and lower court opinions thereafter read something like:
    To prevail, defendant must show by a preponderance of the evidence that his Eighth Amendment rights were violated. However, courts are reluctant to find a “violation[] of this nature within an institution of [the] state,” and will do so only where the evidence “permit[s] no other result.” [Citation].

    Such re-articulations of legal standards are not rare, and they are viewed as elevated. For example, denial of leave to amend a complaint is reviewed for abuse of discretion, but courts are “very cautious in approving a district court’s decision to deny pro se litigants leave to amend.” Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002); and “When . . . the district court has conducted, on the record, a carefully detailed analysis of the evidentiary issues and the court’s own ruling, appellate courts are chary about finding an abuse of discretion.” Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 356 (5th Cir.1995). Both of these examples feature a requirement of judicial reluctance annexed to a customary standard of review. My point is simply that judicial reluctance is a recognized concept in the law, and that the judge seems to have employed it here based on the defendant’s status as an institution of the state. This would surely be evidence of bias as the word is ordinarily used.

  7. The standard of proof in the case is preponderance of the evidence. …the judge highlights his regret and reluctance to find a violation and then concludes that “the testimonial and documentary evidence permit no other result.” …the judge superimposed a higher standard of proof on the defendant….

    [Emphasis mine] I didn’t read this that way at all. What I read was that the evidence either far exceeded the standard of proof, or it drove the judge to set aside a regret he admitted existed.

    It’s certainly true that, from a strictly legal perspective, your analysis is valid. But that just indicates to this layman that lawyers often over-engineer a thing, and read far more into a situation than is necessary, or even warranted.

    Knowing when to stop isn’t any easier for engineers.

    Eric Hines

  8. Ryan,

    I am sorry that I misunderstood. I will now try to answer your questions.

    Both judges are “biased” in the sense they have groups (cops) or institutions (state run prisons) that they are predisposed to favor. In the cop case, the judge apparently acted in conformity with that bias. In the prison case, the judge apparently was able to overcome his or her bias.

    Do I ever use “biased” language, sometimes I do for rhetorical purposes. But doing so is tricky. There may be a good purpose for doing so if the judge honestly acknowledges his or her professed bias and then demonstrates (explains) to the reader or listener how he or she overcame that bias in the case before the court. I suppose I also use “biased” language when anger or another emotion like sadness takes over. That happens under pressure typically.

    Finally,the word “bias” as you use it is loaded with emotional baggage, although I do not mean to suggest that the emotional aspect was the focus of your inquiry. As a scientific matter, I venture to say that there are no human beings who are “unbiased.” After all, stereotypes (biases) have evolutionary origins. For example, the ability to distinguish between “us and them” or “me and you” allowed our ancestors to survive in a strange and violent world.

    I hope this is responsive. If not, let me know and I will try to do better.

    All the best.


  9. The fault is my own. In my parenthetical, instead of simply acknowledging that bias is a loaded term, I should have made it clear that I was referring to bias as defined in the dictionary rather than as defined by the law.

    I agree that there is no human being that is unbiased. Further, I’d wager that if you picked out any particular attribute, there would be very, very few human beings who were not biased to some degree as to even that lone attribute.

    Acknowledging bias is certainly the candid thing to do—and when the result demonstrates you’ve overcome the bias, you both provide deeper insight into the judicial promise and (probably) insulated the decision, to at least some extent, from appellate attack. (I don’t know if judges think of this latter consideration, but were I a judge, this is where I would expect myself to be most likely to employ such language: Where a decision seems unexpected (as where it is against the powers that be), saying “look, I gave them every fair chance I possibly could” seems to make it harder for the reviewing body to undo your work. But I know nothing and could be making that all up.)

    Perhaps it comes down to weighing the benefits of candor (or any other benefits) against the detriment of judicially recognized bias. It is, and I think this is fairly universal, disheartening to see a bias acknowledged, even if you knew it existed and even if you won. Because what about next time.

    An example: I think it is safe to safe that there is a consensus expectancy of bias where a party (especially a criminal defendant) appears slovenly in court. Defense attorneys understand this. They do not question it. Rather, they ensure their client (1) gets his hair cut, (2) shaves, and (3) dresses appropriately for trial. Obviously, these things should have no bearing on the ultimate outcome of the case. (And if, in the case of bench trials, defenses attorneys don’t take these same three steps, please correct me.) So this bias at least presumably exists. Everyone understands that it is the nature of man. But imagine if a judge acknowledged it: “Despite Defendant’s professional haircut and impeccable fashion sense, I must find him guilty and sentence him to 15 months in the federal penitentiary.”

    Isn’t silence better sometimes? The judge in the prison case legitimates his bias by expressing it. So, too, would a judge in this ridiculous case. Arguably the bias IS legitimate: it’s age old. But judicial language that perpetuates it is surely better left avoid. No?

    Perhaps that is what I’m trying to say. Is not judicial language that perpetuates, legitimizes, and furthers bias better left unsaid? Even when we’ve weighed the benefits of candor?

  10. Your point is well-taken. And I think if I wanted to argue your position, I would say that the judge was essentially saying: given the standard of review the testimonial and documentary evidence permit no other result.

    I think that’s the best form of argument that I am reading too much into the expressions of regret and reluctance. Especially considering that the standard of proof is a given, once it has been articulated at least. (And the judge did state the standard of proof.)

    That said, I don’t think I’ve over-engineered it, to borrow your term. Maybe in a normative—how should lawyering be done—sense I have, but perhaps unfortunately, that isn’t how I understand the law to work. Lawyers don’t stop when they’ve got the gist of the message, or when a given interpretation would be satisfactory.

    Take, for example, Twombly. Authored by Justice Souter, the case stated that, to survive a Rule 12(b)(6) motion to dismiss, plaintiffs must allege facts that “nudge[] their claims across the line from conceivable to plausible.” “Factual allegations must be enough to raise a right to relief above the speculative level,” and mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” (I love this opinion for all of its almost lyrical phrases.)

    This case was a big deal. Bigger than Souter imagined. Defense lawyers looked at the language employed and said, “Holy shit, by its terms, this applies to my case… I win too!” Fast-forward to Iqbal. A majority of the court says the standard articulated in Twombly applies to all cases. Souter is left scratching his head. A lawyer content to stop when common sense suggested might have taken little notice of Twombly. It was an anti-trust case, and it’s logic applied, with real force, to similar anti-trust cases. The language of the opinion even suggests this was the case: “[I]t is one thing to be cautious before dismissing an antitrust complaint in advance of discovery . . . but quite another to forget that proceeding to antitrust discovery can be expensive. . . . ‘a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.’”

    Practitioners looked past this rationale to the express terms of the opinion (especially the ones I quoted) and filed their 12(b)(6) motions accordingly. The Supreme court, in Iqbal, validated their approach.

    Thus, while I appreciate appeals to common sense—i.e., appeals to lay modalities foreign from a “strictly legal perspective—I think any lawyer that isn’t willing to over-engineer the problem risks committing malpractice.

  11. A few things, working from Ryan’s dictionary definition of bias (since I’m a layman).

    1) …that isn’t how I understand the law to work.

    In the end, for all our efforts to write Constitutions and define the binding (and bounding) parameters of a social compact, the resulting law works the way the lawyers (which includes judges) make it work. Certainly, a single lawyer who tries to operate from common sense and not over-engineer things (could a consensus be built on “common sense” or “over-engineer” be generated) is just pissing in the wind when everyone else is operating differently. You’d have to get enough of your fellow lawyers to work your way to have an impact on the law’s workings before you could be effective in a normative sense. Which means lawyers are as much victim of herd instinct as the rest of us.

    2) That said, from a defense lawyer’s perspective, the job is to get his client off in some sense. Thus, he’s almost got to over-engineer in order to find a way out for his client–including finding bias where none exists by selling to an appellate court his interpretation of the judge’s “I really liked (or didn’t like) this guy” remark over the judge’s claim of what he meant.

    3) Wrt bias and truth in advertising, I’m always in favor of truth and disclosure, including about bias. Considering your two examples, which I take to be extremes of a continuum, the sloppily comported defendant generates a bias that not only everyone recognizes in common terms, but everyone shares the same bias. And it’s a minor matter (I sat on a jury where a defendant represented himself, was too casually dressed, and behaved too casually with us and toward the judge. It didn’t bother us jurors, but we see that sort of thing in a serious setting rarely. The presiding judge gets that all the time; it must wear on him. His role in the particular trial, though, was limited to reading the defendant our decision, so his bias couldn’t enter.), and so a discussion of it by the judge as he explains his decision isn’t very important.

    In the case of the cop, though, a bias of being spring-loaded to favor a fellow government man, especially in light of a light sentence (and here it’s important to recognize that the definition of “light” varies by perspective: you and I seem to disagree, for instance, on the lightness of community service vs jail. This variable definition also colors the perception of bias’ presence. Here, I think it’s important for a judge to acknowledge his bias–“I really like this guy, and (but) I’m giving him community service instead of jail.” He has to recognize, on the record, that his bias is there, and then explain, in his logic for his sentence, how that bias didn’t enter into his decision concerning the sentence. Apart from protecting his decision from appellate overturning, and perhaps more importantly, this is important so us laymen can believe he arrived at a fair punishment, based on the facts of the case, and didn’t just let the cop skate–or over punish him in an attempt to seem unbiased. Either of those outcomes destroys trust in our judicial system, which today already is quite low.

    Eric Hines

  12. Ryan,

    You are a very, very bright you man. You will make a helluva lawyer.

    As for silence vs candor, my opinion is this: As I said, acknowledging bias can be tricky. So, yes, there is real risk. But, because I am a legal realist at heart, when we can do so without hurting what remains of the valuable mythology that continues to allow our citizens to trust the judiciary, we should take the risk of being candid if only because it is the honest thing to do.

    All the best.


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  14. Neither of these examples involves any admission of “bias,” in either the legal or lay sense.

    In the first, the judge is explicitly basing his sentence on the facts of the case — the police officers’ backgrounds, balanced against their misdeeds. That’s how sentencing works. Federal judges are required to explain their sentences. Would we say the fact that a judge finds any reason for a sentence to be more persuasive than another means that the judge was therefore “biased” in favor of that reason? I guess, but then (as you’ve already sort of acknowledged) everything judges do is “biased.”

    In the second, it seems pretty obvious that the sentiment being expressed is one of regret that the state is running institutions that violate the law. Judges are going to be less surprised (and disappointed) when a random private person violates the law than when the government as an institution does. Dicta in a judicial opinion is not a contract or statute, where each word was meant to be finely parsed, so I find the argument about the distinct meaning of the word “reluctant” pretty tendentious.

    Whether someone has a haircut the judge likes is plainly an inappropriate basis for a judicial decision, so of course no judge would admit to relying on it. A defendant’s background is a perfectly appropriate basis for a criminal sentence, though, and there is nothing inappropriate (or, albeit, required) about referencing a particular reason for being disappointed with the behavior of one side in a case.

  15. My “parsing” goes no further than to argue that the words in the opinion carry their ordinary meanings. Even dicta typically means what it says.[1] I never would have resorted to such parsing if an unlikely alternate meaning had not been asserted. It is nearly laughable that you would characterize my reading as “tendentious” when I am merely saying that the word reluctance means reluctance—while you advancing a reading of “reluctance and regret” as “regret and regret.”

    [FN1] Referring to any portion of a trial court opinion as dicta is not particularly useful given that the dicta/holding distinction is generally used to distinguish binding statements of law from non-binding assertions/assumptions/etc. Trial courts don’t make binding law.

  16. I think that the concepts of “regret” and “reluctance” have a lot more overlap, in ordinary speech, than you seem willing to acknowledge, which is what I found a bit obtuse. If I conclude, based on evidence that reveals itself to me, that a neighbor is an axe murderer, I imagine that I could be said to come to that conclusion both “reluctantly” and “with regret.” The concepts are pretty closely related, and while the two words obviously mean different things in some circumstances, their pairing in this context strikes me as a bit of a cliche, like saying it is both an honor and a privilege to introduce someone. I can’t imagining anyone saying “wow, you were certainly biased in favor of your neighbor, because you have admitted that you not only regretted, but were in fact reluctant, to conclude he was an axe murderer.”

    Look, if your real point is that many judges are biased in favor of the government (in terms of evaluating witness credibility, etc), then of course you’re right. But you’re not going to change much by trying to logic-chop ceremonial bloviations (dicta, in the sense that it was unnecessary to the result) in an opinion. Focus instead on the facts and the substantive correctness of what the judge did in a particular case.

  17. Dear Jay and Ryan,

    I write this comment to both of you. I find your exchange very interesting particularly because the idea of judicial “bias” has generated a rather intense discussion. With that in mind, do me a favor. Both of you should read an article written by Judge Mark Bennett, and others, entitled “Implicit Bias in the Courtroom.” It is very provocative, in part, because it relies upon scientific methods to get at the type of underlying “bias” that Ryan was alluding to and Jay found unwarranted. I will blog more about the idea of “implicit bias” in a post, but for now each of you will find the article stimulating if not entirely persuasive.

    All the best.


  18. Dear Jay and Ryan,

    I write this comment to both of you. I find your exchange very interesting particularly because the idea of judicial “bias” has generated a rather intense discussion. With that in mind, do me a favor. Both of you should read an article written by Judge Mark Bennett, and others, entitled “Implicit Bias in the Courtroom.” It is very provocative, in part, because it relies upon scientific methods to get at the type of underlying “bias” that Ryan was alluding to and Jay found unwarranted. I will blog more about the idea of “implicit bias” in a post, but for now each of you will find the article stimulating if not entirely persuasive.

    All the best.


  19. I read the article. Interesting stuff. I particularly was interested to read the suggested remedies. The only one worried me was “Counting.” The idea of judges tabulating their results and staying abreast of their own trends worries me because those judges might be steered into making unwarranted course corrections.

  20. I also got around to perusing the article this morning. Sorry if I was too snarky before — was up with a 6-month old at the time. I agree with Ryan that “counting” — which, when you get down to it, is a way of saying that judges should step back from deciding individual cases, and instead attempt to impose some sort of rough overall “justice” based on the demographics of their entire caseload — is questionable. To give an absurd (though true) example, when I was a district court law clerk, we had a death penalty habeas case where the state judge had told the defendant in open court that one reason he had to impose the death penalty on this white defendant was that the judge had previously sentenced two black men to death and didn’t want to be racist. Of course, that was a main point in the guy’s habeas petition.

    A lot of these implicit bias studies have been done in various contexts. I don’t doubt that there is truth to them, or claim that implicit bias ends at the courtroom door. However, a courtroom situation seems, to me at least, to raise some different issues than the referee/umpire examples, people helping strangers, or other situations where people are directly witnessing something and then coming to a conclusion/taking action about it. A judge (or jury) is tasked with evaluating events that happened in the past, long before everyone is thrown together in the courtroom. In may be that the those past events, and the people witnessing them, were affected by implicit bias, most obviously in cases involving eyewitnesses or the existence of suspicion by the police. But how is a judge supposed to “control” for that, in addition to his own potential biases, in court? Automatically discount witness IDs of minorities by 1/3? Put more stock in a black cop testifying against a black suspect than if the cop was white?

    And frequently, it may be that while race did have some malign influence in the events leading up to why minority defendant X is in court (cops focus more on drug users in urban areas than the suburbs, etc), that defendant is nonetheless factually guilty of the offense charged. I don’t see it as the judicial role to resolve such broader social questions through individual adjudication (nor do I see how a judge could do so, except in very crude and undesirable ways).

  21. Jay,

    I may blog on this more, and, to tell the truth, my thoughts are not at all fully formed. But, ultimately I think I reject the whole notion of implicit bias in this context, for among other reasons, because: (1) for jurors, the government has no damn business prying into their inner thoughts; (2) for judges, implicit bias “controls” smell too much like thought control; and (3) some of the “biases” that be may looked down upon may be (a) nothing more than values that others do not agree with or (b) generalizations that are often true as a factual matter. To be utterly candid, the whole idea of “implicit bias” and effort to control such things has too much of a “clockwork orange” tint for my tastes.

    All the best.


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