Over the course of the past decade or so, legal scholars have been paying increasing attention to psychological research on cognition and decisionmaking. In general, this has meant that scholars have become more sensitive to the common sorts of cognitive bias that have the potential to warp legal decisionmaking. But, inspired in many cases by Malcolm Gladwell’s 2005 best-seller Blink: The Power of Thinking Without Thinking, another line of psychology-influenced legal scholarship seeks to harness the insights available through subconscious mental processes. As Gladwell demonstrated, hunches can be amazingly accurate in many contexts, particularly hunches by experts. This has led to arguments that courts ought to be quite deferential to police officers seeking warrants or testifying at suppression hearings — demanding rigorous justifications for officers’ suspicions, the argument goes, might cause officers not to rely on their hunches as much, which might be detrimental to effective policing.
Andrew Taslitz responds critically to this line of thinking in a helpful new article, Police Are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right, 8 Ohio St. J. Crim. L. 7 (2010). Taslitz first outlines the many sources of cognitive bias that seem likely to infect police suspicions in many common circumstances, particularly white police officers interacting with minorities in high-crime neighborhoods. As even Gladwell recognized, hunches are not foolproof and can be led astray by superficial appearances and other irrelevant cues. (My own summary of Gladwell’s thought-provoking but mostly inconclusive book would be, “Hunches are more reliable than conscious deliberation except when they are not.”) Taslitz then argues that robust explanation requirements for officers can help to diminish the negative effects of cognitive bias without sacrificing the power of hunches. He concludes:
Perhaps this article’s most important points are that reviewing courts should demand serious, thorough explanations from officers, who must justify their search and seizure decisions, and courts should not also readily defer to conclusory assertions of police intuition. Although the justification requirement is already part of the legal landscape, this article suggests that a more robust version of the requirement is often desirable. That robust version must also take more seriously the command that what police must justify is particularized, not generalized, suspicion. Cognitive science thus suggests that arguments for courts giving even more deference to police search and seizure judgments than is currently true should be rejected. (78)
One reason I find Taslitz’s analysis attractive is doubtlessly because it echoes some of my own work on sentencing. I’ve argued in favor of rigorous explanation requirements for sentencing judges in order to diminish the effects of cognitive bias (e.g., here), and I’ve expressed much skepticism about applying the Blink model to sentencing (e.g., here).
There is at least one source of bias that Taslitz discusses that I have probably not devoted adequate attention to in the sentencing context: the fundamental attribution error. Here is what Taslitz says:
This error is the tendency, especially in American culture, to judge an individual‘s actions as stemming from fundamental personality traits rather than from the situation in which she finds herself. Moreover, people are willing to make quick and confident judgments of a subject‘s personality trait based on a very limited data sample. They will also overgeneralize, treating one perceived negative personality trait as indicative of an overall negative personality across many criteria.
Many early judgments of this kind are based on facial expressions. If, therefore, someone in a rush believes that he has been unjustly stopped by the police, the stopee may react with an angry or irritated scowl. There is a good chance that the officer will interpret the person stopped as being unsociable, unfriendly, unsympathetic, cold, [and] forceful. These traits may lead the officer to dislike the person stopped and to suspect him of wrongdoing. (17)
Comparable dangers seem quite likley in the sentencing context, too. One of the great dangers of incapacitation-based approaches to sentencing is that a judge will too quickly reach the decision that a defendant is a “bad person” based on a few situation-dependent bad acts, or even just bad demeanor in the courtroom. For that reason, if incapacitation is to be regarded as a legitimate purpose of punishment, it should be based on objective, actuarial analysis, rather than judicial hunches about recidivism risk.