Could mindfulness improve
judicial decision making?
BY TESS M.S. NEAL, PHD, AND EVE M. BRANK, JD, PHD • UNIVERSITY OF NEBRASKA
Imagine you are a trial judge. You look out into your crowd- ed courtroom where 20 defendants wait to hear their names
called off the docket. Some defendants are no strangers to the
inside of courtrooms. Other defendants are undoubtedly
innocent. You try to move the cases off the docket as quickly as
possible so you will be able to get through them all. You spend
much of your time multitasking as the cases are called; you sign
papers and whisper answers to your clerk’s questions, all while
trying to listen to attorneys who present motions and arguments.
Case overload, fatigue, multitasking and burnout are everyday
realities judges face as they keep the wheels of justice moving.
Yet, these are also some of the conditions that psychological
research shows underlie diminished decision-making abilities.
One contributing factor may be relying on “rules of thumb,”
or heuristics, to quickly decide cases. For example, a judge may
rely on stereotypes about gender and race as they can relate to
reoffending. Despite the superficial similarities between cases,
however, it is important for judges to pay sufficient attention to
each case to reach fair and just outcomes.
A potential result of heuristic decision making might
be the criminal justice system’s racial disparities in process
and outcomes. Evidence shows, for example, that minority
defendants fare worse than white defendants who are similarly
situated. Research by Jeffrey Rachlinski, PhD, JD, of Cornell
University Law School, and colleagues demonstrates that U.S.
trial court judges harbor the same implicit biases against black
Americans that most Americans harbor. It follows that judges’
decisions may be influenced by implicit racial biases; however,
these researchers also showed that many of the judges were able
to compensate for the influence of these biases when they had
sufficient awareness and motivation to do so.
Using fair and just procedures in all cases is important
for many reasons. Some of the reasons, according to Tom R.
Tyler, PhD, of Yale Law School, are that unless trial participants
perceive the court as fair, public perception of the court suffers
and compliance with court orders decreases. Two conditions
that undermine perceived fairness are when judges do not give
litigants and defendants “voice” and when the judge is perceived
as not treating participants with respect or dignity. Because
of the court system’s burdens, even the most well-intentioned
judges may inadvertently send the message that they do not
have time to, or do not want to hear, what the litigant or
defendant has to say.
Might mindfulness help lessen the effects of faulty cognitive
shortcuts and implicit biases? Mindfulness is the practice of
focusing attention and non-judgmentally observing thoughts,
emotions and bodily sensations as they ebb and flow. For
example, Bob Stahl, PhD, and Elisha Goldstein, PhD, offer a
brief mindfulness practice they call the “STOP meditation.”
STOP is an acronym that could remind judges to Stop what
they are doing, Take a few deep breaths and focus on the
experience of breathing, Observe their thoughts, feelings
and actions, and Proceed with new awareness. With practice,
people who engage in mindfulness are thought to be able to
respond to decision-making tasks with greater focus, attention
and reflection rather than relying on heuristics. And, as with
physical exercise, the more one engages in the activity, the more
skilled one becomes.
Pamela Casey, PhD, and her colleagues at the National
Center for State Courts suggest that teaching brief mindfulness
techniques to judges will enable them to “reset” their attention
whenever they begin feeling distracted or overwhelmed. Would
litigants and defendants feel more satisfied with the justice process
if they faced judges who practice mindfulness? How much time
would a mindful approach add to an average case (if any)? Would
the number of appeals filed decrease if trial participants are more
satisfied with the justice process? Might the racial disparities
in the justice system decrease when judges are more attentive
to and mindful about individual defendants? Psychological
research could empirically examine these important questions to
determine if a contemplative and mindful approach to cases may
help judges reaffirm the priority of each case, and ensure that each
person before the court is given a fair process. n
“Judicial Notebook” is a project of APA Div. 9 (Society for the
Psychological Study of Social Issues).
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