Magistrates are exposed to an endless line being processed through the justice system and although they must be stoic, this must have an impact. The jurist Jerome Frank stated as
early as 1930: “Uniquely individual factors often are more important causes of judgments than anything which could be described as political, economic, or moral views”.
How judges are influenced by irrelevant factors is described by Dan Priel in What the judge had for breakfast.
Recent work in cognitive science provides strong evidence for a link between emotion and moral judgment. For example, Danziger et al. in Extraneous factors in judicial decisions,and Chen and Loecher in Mood and the Malleability of Moral Reasoning: The Impact of Irrelevant Factors on Judicial Decisions.
Aboriginal people in particular are reported to have low levels of trust in the justice system, because of the role that the legal system played in dispossession and still plays in over-incarceration, and because of the removal of Aboriginal children from their families in the past. Deadly Connections has suggested that judgments should be subject to implicit bias analysis and that this information should be used to inform cultural competence programs
and bias training for magistrates and judges.
According to a 2022 Australian Law Reform Commission report into (federal) judicial impartiality, developments in behavioural psychology teach us that bias and interference can influence decisions. Its recommendations involve change to how judges are appointed, monitoring of judicial diversity, more judicial education, and the creation of an independent avenue to deal with complaints against the federal judiciary – in short, criteria that are in place in most other workplaces. The report voices concerns that there may be misunderstanding of the test for bias among the judiciary, the legal profession, and the public. It recommends changes to the process whereby judges must determine their own bias, which is in opposition to behavioural psychology. It also recommends
that the Australian government develop a more transparent process for judicial appointments. This would involve the publication of criteria for an appointment, public calls for expressions of interest, and a commitment to promoting diversity in the judiciary. These reforms should bring Australia into line with international standards and trends. Most importantly, the commission identified the topics for additional education of judges as: emotional awareness
and emotion management; trauma-informed approaches; cultural competency; cultural humility and understanding diversity; reflective practice; mental health and well-being; critical reflection on social and cultural bias. A separate recommendation calls for a structured and ongoing program of Aboriginal and Torres Strait Islander cross-cultural education. This would be led by Aboriginal and Torres Strait Islander people and organisations.80
There are indications that a more radical solution for the problem of bias is nearing: a great equalizer for decentralized justice in the form of justice using blockchain.
De Filippi and Wright, in Blockchain and the Law: The Rule of Code, describe how Blockchain may be used to improve the criminal justice system using a distributed ledger architecture. Criminal charges may be shared and tracked in a ledger that law enforcement, prosecution, courts, probation, defense attorneys, and corrections organisations can access. When charges are added or dropped by law enforcement, prosecution, or courts, that information is posted to the ledger. The result is a faster, more efficient administration of justice. In later stages, the judge or magistrate may become largely obsolete, and unbiased justice should result. England and Wales are already moving towards this system, and The Council of Europe’s Committee for the Efficiency of Justice has adopted the charter: ‘Ethical Principles Relating to the Use of Artificial Intelligence (AI) in Judicial Systems’.
A truly revolutionary system is in place in New York, USA. In Youth Courts in Harlem, the Bronx, Staten Island and Newark N.J., positive peer pressure is used to ensure that young offenders pay back the community and receive the help they need to avoid further involvement in the justice system. These courts hear a range of crimes that would otherwise wind up in Family Court or Criminal Court. The courts handle cases involving young people,
ages 10 to 18, who have been charged with vandalism, assault, and truancy. Teen volunteers lead hearings or restorative circles, assign sanctions, and provide mentoring to youth offenders. They receive referrals from schools, the Police Department, the Department of Probation, Family and Criminal Courts. The courts incorporate several features of restorative justice: participation is voluntary and requires offenders to take ownership of their actions.
Through the hearing or restorative circle, the respondent can tell their story and answer questions posed by the jury. Sanctions typically include community service, letters of apology and skill-building workshops. Successful completion of sanctions results in a favourable disposition of the case by the referring agency.
Adult staff members make an initial assessment of each respondent. Offenders are given the opportunity to cultivate their leadership skills and are exposed to a range of education and career opportunities. Young people with previous judicial involvement are strongly encouraged to apply. Youth court members receive 30-40 hours of training before serving.
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