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Cognitive Enhancement in the Courtroom. The Ethics of Pharmacological Enhancement of Judicial Cognition

JENNIFER A. CHANDLER AND ADAM M. DODEK

Introduction

What would it mean to enhance the cognition of judges, and on what basis could one say there is an obligation to do so? In this chapter, we sketch out some possible responses to these two questions. In doing so, we aim to contribute to the contemporary debate over “cognitive enhancement” and “moral enhancement” in the neuroethics literature, where these terms usually refer not to traditional methods of education or healthy lifestyle but to so-called artificial enhancements via pharmaceuticals. We also limit our focus to trial judges acting in civil or criminal matters without a jury. In many jurisdictions, including in some countries that have a jury system, a great deal of judicial decision-making takes place with the trial judge acting alone.1

Others have explored the question of whether those practicing certain other occupations may have a moral or even legal obligation to use techniques of cognitive enhancement. The most frequently cited occupations are those in which errors may have serious consequences for the health and safety of others, such as pilots and surgeons.2-4 However, judicial actors have also been raised in this debate. Sandberg et al. have raised the question of whether actors in the judicial process ought to enhance their cognitive capacities given the significance of the decision for litigants and society.5

There are unsurprising yet still disquieting signs that judicial decisionmaking is affected by various legally irrelevant factors and that judges suffer from many of the same flaws in decision-making as other human beings.

Danziger et al. recently tested the caricature that “justice is what the judge ate for breakfast” by reviewing a sample of parole decisions.6-7 The proportion of decisions favorable to the prisoners was highest at the beginning of the day and after each food break and declined to near zero during each decision session. They interpret this as a demonstration that depletion of mental resources causes judges to default to the status quo of continued incarceration. Guthrie et al. offer evidence that judges are prey to the same systematic errors as the rest of us due to the effects of cognitive heuristics and biases.8

Implicit (unconscious) biases are a pervasive feature of human thinking and also of judicial decision-making. For example, using the implicit association test (IAT), Rachlinski et al. found that a sample of American judges do carry implicit racial biases.9,1 They found that, on average, these implicit biases did not affect the verdict in a hypothetical case in which the defendant’s race was varied, which the authors explain as deliberate self-correction. Although it is reassuring that conscious monitoring and correction for bias is possible, it depends on motivation and adequate time. Rachlinski et al. cite multiple studies documenting less favorable results for black defendants than comparable white defendants at various stages of the criminal process in the United States, suggesting that we should remain concerned about the impact of racial bias on judicial decision-making.9: 1196

The emotions of judges have traditionally been highly suspect components of judicial decision-making out of fear that they would undermine objectivity in legal reasoning.10 However, in some adjudicative contexts, emotional responsiveness may be very important. For example, Rousseau and Foxen report on the emotional detachment or desensitization of those adjudicating refugee claims upon hearing repeated stories of violence.11

Given the high stakes in judicial decision-making for both the parties directly concerned as well as for society in general, the question of improving the quality of those decisions is important. Some factors, such as adequate legal education, experience, and a good mental and physical state (e.g., adequate rest, nutrition, health), are obviously useful. Beyond this, it is less clear what we ought to optimize. Judicial decision-making is heterogeneous, involving multiple types of tasks, each of which may use multiple cognitive and emotional processes to varying degrees. This raises the possibility that attempts to enhance one aspect of judicial cognition might undermine another. A further complexity that arises in the judicial context—which does not arise in the more straightforward case of the desire to enhance the alertness of pilots or surgeons, as discussed in the literature—is that it is possible that judicial cognition might be enhanced “too much.” In other words, decisions that diverge too much and too often from the judgment of the “unenhanced” population might put public support for the justice system at risk. Of course, mature societies are aware that justice according to public opinion is rarely just, and there is thus some understanding and tolerance for decisions that upset the majority. However, there may be limits to this as well. This distinguishes our case from those of pilots and surgeons whose capacities we would very much like to be better than our own.

However, the fact that the quality of judicial decision-making is important to litigants and to society does not necessarily imply an obligation to enhance cognition or, if there is such an obligation, to use a particular method to do so. There are many things that are desirable to others that people are not morally obliged to do. Further explanation is therefore required to justify any such obligation. Candidate theories that might ground a moral obligation to enhance cognition flow from the traditional professional ethical obligations of judges enshrined in Codes of Judicial Conduct or from the concept of fiduciary obligations. Professional occupations are typically identified by their fiduciary nature, namely as relationships in which the beneficiary is vulnerable to and reliant upon the good faith and loyalty of the fiduciary. In the case of judges, we have two classes of vulnerable parties: litigants whose interests are directly affected and society, which has collectively granted to judges considerable independence and power and which has an interest in the fair and effective administration of justice.

 
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