Judges are the axle on which the wheels of justice turn. They manage pre-trial proceedings, mediate settlement conferences, rule on motions, conduct bench trials, supervise jury trials, take guilty pleas, impose criminal sentences, and resolve appeals. In the process, they find facts, make or apply law, and exercise discretion. Judges wield enormous power and society therefore rightly expects much of them. Judges must be fair minded, impartial, patient, wise, efficient, and intelligent. They must set aside their politics and their prejudices, make rational decisions, and follow the law.[1]

But is it possible for judges to perform as we expect? The answer to this question remains somewhat uncertain. Twenty years ago, Lawrence Baum concluded, “Despite all the progress that scholars have made, progress that is accelerating today, we are a long way from achieving truly satisfying explanations of judicial behavior.”

Much more research has been conducted since then, but judicial behavior still remains something of a mystery. Some scholars argue that judges behave rationally but make decisions that further their self-interest That assertion, however, raises as many questions as it answers:

• What do judges see as their self-interest? Are fairness and impartiality their primary goals?
• What incentives do judges really face?
• After all, they rarely lose their positions and seldom get promoted.And even if judges primarily strive for fairness and impartiality, do they achieve these goals?

This article surveys the empirical research that assesses whether judges live up to the standards of their profession. The evidence accumulated to date reveals that judges fall short in predictable ways.

1. First, as the legal realists feared, judges’ personal characteristics influence their decision making. Specifically, the research indicates that when cases raise issues that are salient to judges’ personal characteristics, they do not consistently put their characteristics aside.
2. Second, judges overreact to mechanisms of accountability, such as appellate review, retention, and promotion.
3. Third, judges rely too heavily on intuitive ways of thinking that can be misleading.
4. Fourth, in making decisions, judges sometimes rely on factors outside the record, including inadmissible evidence, their emotional reactions, and prejudices.

To be fair to judges, they labor under a great deal of academic scrutiny. The existing research on judicial decision making probably focuses too heavily on judicial failings. Scholars conduct their research with an eye towards showing that judges are politically motivated or biased. This is understandable, given the ideal of neutral judging that society expects from judges, but the emphasis on deviations likely makes judges seem worse than they are.

The research includes several studies in which judges adhere to an ideal norm of neutrality, and we certainly include these in our review. No studies really provide usable estimates of how many cases are skewed by politics, prejudice, or other misjudgment, and the research does not support a means of making a reasonable estimate. The circumstances under which judges deviate from the norm are nevertheless worth exploring, not to make judges look bad, but to identify potential ways they might improve. In reaching our conclusions, we review a diverse array of both experimental and field studies of judicial decision making.

We set aside judges’ autobiographies and biographies, interviews of judges, careful parsing of individual opinions, and judges’ own accounts of how they make decisions. Such undertakings can provide valuable insights, but our focus lies on systematic empirical accounts of judicial decision making. These include 4 archival studies of actual decisions and experiments or simulations using hypothetical cases. Although most research on judges emphasizes decisions of the US Supreme Court (especially since the Second World War), our focus lies with the state courts, lower federal courts, and a handful of international studies.

Although the US Supreme Court is important, of course, it resolves few cases and represents only a tiny window into the judicial decision-making process. Each of the studies we incorporate into our analysis involves vastly more judges than the 39 people who have served on the Supreme Court in the last 70 years. The focus on the Supreme Court also tends to emphasize the role of politics in judging. Political influence is only one way judges can fail to meet the demands of their roles. We discuss this concern but expand upon it.

Political Ideology:[2]
Political ideology is the most widely cited extralegal influence on judges. An avalanche of research demonstrate that US Supreme Court justices make decisions that align with their political attitudes. Federal court judges display similar tendencies. A thorough review of this literature lies beyond the scope of our inquiry here, and we focus on other aspects of judicial decision making.

The literature on judicial political ideology has been reviewed at length elsewhere, and even the leading exponents of political ideology now acknowledge that focusing too narrowly on it provides an incomplete account of judicial behavior. We nevertheless accept the conclusion that judges are political actors whose beliefs influence their judgment. That said, we note that most of the research here focuses on the Supreme Court and the highest state courts.

Studies of trial court judges are less common, and notably, some show a more mixed portrait of political influence at the trial court. Inasmuch as more than 80% of cases are ultimately decided by the trial court alone, this result gives some comfort that for most litigants their cases will not be decided largely by the politics of the presiding judge. If judges are political actors, then their political attitudes are apt to be most salient in cases with direct political implications.

Cox & Miles found exactly that result in voting rights cases. They concluded that the political party of the presiding judge has a large influence on case outcomes among federal judges. These authors reported that Democratic judges are more likely to find liability under Section 2 of the Voting Rights Act (VRA) than their Republican counterparts. Section 2 cases involve claims that redistricting patterns have undermined minority voting rights, which would disfavor Democrats.

Furthermore, the presence of one Democrat or one African American on the panel influences the voting patterns of the other two judges---a pattern that researchers have identified in several other settings. Political attitudes thus seem to influence judges when politics lies at the heart of a case.

Demographics and Judging The legal realists argued that a judge’s personal characteristics influence how they decide cases . Contemporary research supports and sharpens their point. As we describe below, demographic characteristics---e.g., religion, gender, race, and past employment---all influence judges. The influence of demographics follows a predictable pattern: Judges tend to decide cases that present issues salient to their demographic characteristic in ways that favor their demographic profile.

Religion:
Judges’ religious backgrounds influence their decision making. Jewish and Catholic judges display more political liberal issues in decision making than their Evangelical and Protestant counterparts, but this finding does not discern whether religion produces different general political attitudes or whether other demographic factors that correlate with religion are at play. Other studies demonstrate that specific religious values lead judges to decide certain kinds of cases differently.

For example, consistent with papal teachings, Catholic judges (along with Evangelical judges) are more likely to side against gay rights relative to other judges but are more moderate in capital cases. Catholics and Evangelicals likewise have been shown to be harsher on defendants in obscenity cases.

Religious orientation also influences judges heavily in religious accommodation cases:
“Jewish judges vote heavily separationist, Catholics vote heavily accommodationist, and Protestants divide”.

A more recent study confirmed the result that Jewish judges and other judges who follow less common faiths much more strongly favor accommodating minority religious practices than Catholic and Protestant judges . In effect, religious orientation matters when core aspects of the judges’ religion are at play in the cases they decide.

Gender:
After women began entering the ranks of the judiciary in appreciable numbers, scholars began asking whether their gender would influence their decisions on the bench. The results are equivocal.

Two early studies of sentencing in urban trial courts found no differences between male and female judges. More recent work replicated this finding. Other studies also found little effect of gender among federal appellate judges. Overall, female judges are not particularly more or less conviction prone than their male counterparts, nor do they clearly favor or disfavor plaintiffs in civil cases. Gender matters in cases in which gender itself is an issue, however.

Songer , for example, found that the gender of federal appellate judges did not influence decisions in obscenity or search-and-seizure cases, but female judges favored plaintiffs in employment discrimination cases relative to their male counterparts. Differences are also more likely to be found in cases involving so-called women’s issues or in which gender is salient---mostly workplace discrimination and harassment cases . In one notable study, the presence of a single female judge on a 7 three-judge panel in the United States Courts of Appeals increased the success rate for female plaintiffs in sexual discrimination claims relative to all-male panels.

The result is striking, as a single judge can easily be outvoted by the other two. The finding suggests that the presence of a female judge adds a different perspective that disproportionately alters the ultimate outcome. Even in cases involving gender issues, however, studies do not uniformly report differences between male and female judges. A recent related study expands the notion that demographic characteristics like gender can influence judgment at a personal level.

The study found that in gender-related cases (such as sexual harassment), a federal judge with one or more daughters is 7% more likely to vote in favor of the female plaintiff compared with a judge with no daughters. In cases not involving gender-related issues, however, judges with daughters do not differ from their counterparts who have either no children or only male children. Apparently, judges come to identify with their daughters’ interests.

Race:
As with gender, a judge’s race seems to matter most when race is a central issue in the case. In the study by Cox & Miles (2008) that we discussed above, the authors found that the effect of race on the outcome of Section 2 claims under the VRA was much stronger than the effect of politics alone. Similarly, African-American federal district judges more often rule favorably for plaintiffs on pretrial motions in race or gender discrimination cases than white judges . Another study also showed that white federal judges are less sympathetic to employment discrimination claims than minority judges---especially in pro se cases.

Yet another study concluded that plaintiffs in racial harassment cases have a 42.2% success rate with African-American judges, a 20.6% success rate with white judges, and a 15.6% success rate with Hispanic judges. Moreover, in this study both white and African-American judges were more likely to rule in favor of plaintiffs of their own race than for plaintiffs of other races. Research examining the effect of judges’ race on appellate panels in affirmative action cases revealed that African-American judges support affirmative action plans 90% of the time compared with non-African-American judges, who uphold such plans 80% of the time.

The researchers also discovered that a judge’s race has a larger panel effect than a judge’s ideology. Both results were consistent with an earlier study of affirmative action cases . Findings concerning the effect of judges’ race on sentencing outcomes, however, are mixed. One study that examined sentencing in Pennsylvania from 1991 to 1994 found that African-American judges are more likely to incarcerate offenders, but did not impose lengthier sentences than their white counterparts.

Another study comparing felony sentences imposed by African-American and white judges from 1976 to 1978 in Michigan found that white judges were more likely to incarcerate than were African-American judges. As in the previous study, however, this research found no effect of judge’s race on sentence. A study of Latino judges in Texas similarly found that Latino judges were only slightly more likely to impose harsher sentences than their non-Latino counterparts.

Research by Abrams et al. provides the strongest support for racial bias in judging, albeit using an indirect method. Using a large sample of trial court data from Cook County, Illinois, these authors concluded that African-American defendants were sentenced more harshly than white defendants.

The limitations of the data did not allow the authors to control for other factors, but they were able to demonstrate that, despite random case assignment, some judges exhibited a much bigger racial disparity than others. Their results suggest that some judges treat defendants of different races differently, but also that many judges do not.

As with other demographic variables, race seems to matter most when the issue of race lies at the center of the case. Although most of this research focuses on African-American judges, concluding that only African-American judges are motivated by race would be a mistake.

For one thing, the data reveal that only certain kinds of cases come out differently when they are in front of African-American judges. Litigants might be presenting their cases differently to an African-American judge than to a white judge. Furthermore, the results might suggest that white judges react negatively to voting rights or affirmative action claims, at least as much as they suggest African-American judges react positively to such claims.

Age:
Age and experience are under-researched demographic factors. Fox & Van Sickel found that older judges were more apt to favor prosecutors in rulings in criminal cases. Another study found that younger judges were less sympathetic to plaintiffs in age discrimination cases than older judges. Indeed, the oldest judges were roughly twice as likely as the youngest judges to vote for plaintiffs in age discrimination cases. Although this study drew criticism on methodological grounds it adds to the emerging idea that judges’ demographic characteristics induce empathy for claims litigants make that are related to those characteristics.

Employment History
Does prejudicial service as a prosecutor predispose a judge to rule in favor of the defendant? Studies of the US Supreme Court suggest it. Previous experience, however, might not be the kind of salient, personal characteristic that produces a clear attitude toward certain types of cases. Former prosecutors could be either more skeptical or more supportive of prosecuting attorneys who appear before them.

The empirical evidence among the broader swath of state and federal judges is, in fact, mixed. Most studies conclude that judges who were former prosecutors were somewhat more likely to vote against the defendant. however, found no relationship between prosecutorial background and judges’ decisions in criminal cases.
 
Clearing blacklogs
We have been hearing that the Indian Judiciary would need decades to clear its backlog. The judicial system has become irrelevant for the common citizens, and this is responsible for many ills plaguing our Nation, like disrespect for laws and corruption.

The ease of doing business also suffers and the rule of law cannot really prevail. The poor and marginalized are hit most in this state of affairs. Supreme Court judge Justice A M Khanwilkar acknowledges that at least 90 percent people give up their claim to justice. He added that there was only 10 to 15 percent citizens who have access to the justice system in India.

A common belief is that we should have three to four times the number of judges. Some people believe that this can change only if there are major judicial reforms, or judges do not give adjournments or forgo their vacations. Some advocate the drafting of better laws.

These would require changing the attitudes of judges, lawyers and MPs and there is no sign of it happening. It would be very good if all this happens, but so far there is no sign of it. Former Chief Justice Thakur said that unless the sanctioned number of judges was increased by over three times,- 70000 judges,- justice could not be delivered.

It appears to have been accepted that a judicial system which can deliver timebound justice is unlikely, and the fundamental right to Speedy Justice will be a mirage for India. It is a common argument that UN standards suggest 50 judges per million population, whereas India has less about 20. In 2017 if we assume a population of 1250 million the sanctioned judges were 19.1 judges per million[3].

I decided to try and evaluate how many extra judges would be required to start reducing judicial backlogs. The 20th Law Commission in its report no. 245 submitted in July 2014, after examining the issue from different perspectives concluded that the Rate of Disposal per judge per year is the right method for evaluating this. In simple terms it assumes that if 10 judges are disposing 10000 cases, 12 judges will dispose 12000 cases.

This may not be exactly correct but is likely to be the correct position with a margin of error no more than 10%. I took the data reported by the Law Commission in its report no. 245, and did a proper analysis of its data for 2002 to 2012 of fourteen states for the subordinate courts it had taken. A careful analysis shows that if it had been ensured that all sanctioned positions of judges were filled there would have been no backlog by 2007. I decided to take a look at this issue by analyzing the data given on the Supreme Court's website[4] at in Courtnews for a twelve year period from 2006 to 2017 (both years included)which has a quarterly report for all the courts. This analysis has been done by adopting the same 'Rate of Disposal' method accepted by the Law Commission.

The summary of this analysis is tabulated below. This shows that the number of sanctioned judges is adequate and if all the sanctioned judges were appointed mounting pendency and huge delays would be history. The number of judges sanctioned in the three levels on 31 December 2017 was 31 in Supreme Court, 1079 in High Courts and 22704 in the Subordinate Courts.

The actual number of judges appointed was 25, 676 and 17028 in the three levels. Thus the total number of sanctioned posts were 23814 whereas the working judges were only 17739! Filling about 6000 vacant positions can make the judicial system deliver efficiently. The increase in pendency in twelve years was about 56 lac cases whereas the disposal missed due to not filling all sanctioned posts was nearly 661 lacs! The increase in cases each year is less than 2.5 % of the average number of cases instituted each year, whereas the average vacancy is about 21%! I also assumed that an average vacancy upto 5% would have to be accepted in view of the overall inefficiency. If there was no vacancy the three levels would have a no backlogs in 2014, 2012 and 2012 respectively.

With 5% vacancy the backlogs would have been completely eliminated by 2017, 2014 and 2014. There can be no excuse for keeping judicial positions vacant while the nation suffers because of this neglect. The retirement date of judges is well known. It would be possible to factor in vacancies due to resignations, promotions and deaths by studying the past data.

The increase of sanctioned positions can also be forecast early. The number of registered advocates is about 1.3 million and over 60 thousand graduates emerge each year from our law schools. Even if infrastructure is inadequate it would need to be augmented by only about 20%. Even if we assume that there would be a capital cost of setting up courtrooms this would not exceed about 3 crores per courthouse which would mean about 18000 crores only. This is a simple solution and can be implemented very easily.

This does not assume any change in the way judges and lawyers function. It only assumes that the extra judges who fill the vacancies will also dispose matters at the same rate as those who are already in the system. While the sanctioned judicial positions are about 19.1 judges per million the actual working strength is only 13.9 judges per million population.

Surely it can be ensured that this process can always be started six to twelve months earlier and the Collegium recommendations are sent to the government three months before the vacancy occurs. There should be a similar approach for subordinate judges, of ensuring that the selection process is finished in advance.

For the sake of the nation all those responsible must ensure that all judicial appointments are made in a timely manner. An easy solution is available. This analysis suggests that if a simple process of estimating vacancies and ensuring zero vacancy is followed, the sanctioned strength is adequate to dispose the inflow of cases and some backlog. Even if we assume that there would be upto 5% vacancies, the backlogs would go down dramatically. If this simple solution is implemented the problem will move towards a resolution. This is a simple mechanical solution. If the queue of cases does not keep getting longer, most delays would be reduced considerably.

If the queue is very small there is not much scope for delays. If a policy decision were taken to ensure zero vacancy in the judicial positions, it appears that the backlogs would become history and the fundamental right to speedy justice would be actually implemented in our courts. The policy decision could also be made a law with accountability fixed for who is responsible to ensure its implementation.


The increase in Pendency in twelve years was about 56 lac cases whereas the disposal missed due to not filling all sanctioned posts was nearly 661 lacs! The increase in cases each year is less than 2.5 % of the average number of cases instituted each year, whereas the average vacancy is about 21%! I also assumed that an average vacancy upto 5% would have to be accepted in view of the overall inefficiency.

If there was no vacancy the three levels would have a no backlogs in 2014, 2012 and 2012 respectively. With 5% vacancy the backlogs would have been completely eliminated by 2017, 2014 and 2014. There can be no excuse for keeping judicial positions vacant while the nation suffers because of this neglect. The retirement date of judges is well known. It would be possible to factor in vacancies due to resignations, promotions and deaths by studying the past data. The increase of sanctioned positions can also be forecast early.

The number of registered advocates is about 1.3 million and over 60 thousand graduates emerge each year from our law schools. Even if infrastructure is inadequate it would need to be augmented by only about 20%. Even if we assume that there would be a capital cost of setting up courtrooms this would not exceed about 3 crores per courthouse which would mean about 18000 crores only.

This is a simple solution and can be implemented very easily. This does not assume any change in the way judges and lawyers function. It only assumes that the extra judges who fill the vacancies will also dispose matters at the same rate as those who are already in the system. While the sanctioned judicial positions are about 19.1 judges per million the actual working strength is only 13.9 judges per million population.

Surely it can be ensured that this process can always be started six to twelve months earlier and the Collegium recommendations are sent to the government three months before the vacancy occurs.

There should be a similar approach for subordinate judges, of ensuring that the selection process is finished in advance. For the sake of the nation all those responsible must ensure that all judicial appointments are made in a timely manner. An easy solution is available. This analysis suggests that if a simple process of estimating vacancies and ensuring zero vacancy is followed, the sanctioned strength is adequate to dispose the inflow of cases and some backlog. Even if we assume that there would be upto 5% vacancies, the backlogs would go down dramatically.

If this simple solution is implemented the problem will move towards a resolution. This is a simple mechanical solution. If the queue of cases does not keep getting longer, most delays would be reduced considerably. If the queue is very small there is not much scope for delays. If a policy decision were taken to ensure zero vacancy in the judicial positions, it appears that the backlogs would become history and the fundamental right to speedy justice would be actually implemented in our courts. The policy decision could also be made a law with accountability fixed for who is responsible to ensure its implementation.

Why juries work best
First and foremost, because despite the failings of individual jurors, juries get it right most of the time. They make the right decisions on the evidence and come to the right verdicts. Not every time, of course, they are not infallible – how could they be, no humans are, not even judges, but they do get it right most of the time.

The report from the Ministry of Justice ­published last week, the culmination of 18 months of meticulous research into over half a million cases heard in England and Wales, shows juries are fair, efficient and effective. They convict almost two-thirds of those they try, they convict more than they acquit in rape, they do not exhibit any racial bias and they only fail to reach verdicts in less than 1% of cases. So juries do a good job and now we have the facts and figures to prove it. Plainly that must be the first requirement of jury trial, whatever else may be its value.

Think back to all the major miscarriages of justice of the last 50 years and you'd be hard pressed to find one where the fault lay with the jury. Overwhelmingly the miscarriages have been due to failures in other parts of the system – by police, by experts, by witnesses or by lawyers. If the evidence put before the jury is flawed, because it is tainted by impropriety, wrongly interpreted, ­inaccurate or incomplete, then you will get a flawed verdict.
 
But that juries work well is not the only reason to support trial by jury. Equally important is the fact that juries are one of the most democratic aspects of the constitution; they are democracy in action every day of the week, not just once every four or five years. There is no other part of the constitution that is so open to the public, where ordinary people participate in decisions of such immediate importance and wield real power. There are jurors settling the fates of their fellow citizens in crown courts up and down the country every day of the week, determining by their verdicts whether or not defendants are guilty of the most serious crimes of violence and dishonesty such as murder, rape, robbery and fraud.

Juries bring with them the freshness and insights of those who are new to the system and have not become case-hardened or cynical. For anyone accused of crime, the truthful defence can be no different from the lying one- I wasn't there, I thought he was going to hit me, she consented, I thought I was being honest, I didn't know the drugs were there.

There is a limit to the ways in which you can be innocent. But if juries are not cynical, neither are they naive, and it is a rare jury that cannot detect where the truth lies when faced with the conflicting accounts of witnesses.

Because that is the advantage of a jury of 12: it reduces the chance that a mistake of fact will be made. It may be that one or two on the jury don't believe the witness or the defendant but that all 12 will be wrong is unlikely. Those who argue for trial by judge will have to accept that judges make mistakes and they are not infallible. But what if the judge makes a mistake of fact, chooses to believe the wrong witness, one that only a minority of the jurors would have believed? There is no remedy for that kind of mistake.

There is another powerful reason why trial by jury is necessary. In this age of mass media, most people derive their knowledge of what goes on in a court from what they read in the paper and see on television. But no newspaper report or TV item can ­possibly convey all the detail and subtlety of the hours of evidence given in court. An ­editing process is taking place: even the most impartial reporter has to filter the ­evidence. If all that citizens know of the criminal justice system is what they read in the papers and see on TV, they are going to get a misleading impression of how it works and that misleading impression can corrode their faith in the system.

You may wonder when you read the newspaper report of a case how a jury could have arrived at its verdicts, but you will only have heard a fraction of the evidence that the jury heard. When Frances Inglis and Kay Gilderdale were tried for unlawfully killing their children, there was fierce public debate about the merits of the prosecutions, but the only people who heard all the evidence were the jurors, and the ­differing verdicts reflected the ­differing evidence in two cases that were ­superficially similar.

By bringing ordinary citizens into the system and placing them at the very heart of the decision-making process, trial by jury exposes the criminal justice system to their scrutiny while ensuring they gain first-hand experience of how that system works.

Trial by jury helps the criminal justice system reflect the values and standards of the general public. It's vital for the health of the criminal justice system that citizens ­participate in it and it is vital for democracy that they do, which might explain why politicians are always seeking to limit that participation.

At the start of every criminal trial, the jurors take an oath to try the ­defendant "and give a true verdict according to the evidence". What last week's report shows beyond reasonable doubt is that is exactly what juries do and, for all our sakes, they must be allowed to carry on doing it.

End-Notes:

1. American Bar Association, Model Code of Judicial Conduct, 2011
2. Judging the Judiciary by the Numbers: Empirical Research on Judges Jeffrey J. Rachlinski Cornell Law School, [email protected] Andrew J. Wistrich U.S. District Court, Central District of California
3. https://www.livelaw.in/columns/judicial-backlogs-can-become-history-143978
4. http://www.supremecourt.gov.in/publication

Written by: Syed Shabaz S, Graduated of BA.LLB (5years) - Legal Counsel, DG Institute Financial Services, Sydney, New South Wales, Australia
Email:[email protected]
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