..there is a rather cynical discipline called legal realism that says the law is really based on quirks of individual psychology, “what the judge had for breakfast,”...
In common law countries, sentencing decisions are made by trial judges. But the decisions of trial judges don’t count as “precedent,” and therefore are not “the law.” Case law—binding precedent—is made up of the published decisions of appeals courts. Trial judges often have to make their decisions in real time, right there at the trial in front of everyone. Appellate judges mostly read written briefs, have their staffs make preliminary recommendations, think about it awhile, put it aside to sleep on the matter, have their clerks write rough drafts, make edits, and consult with their colleagues before they have to issue an opinion. Binding decisions are made by majority vote. This should compensate for a lot of the randomness implied by the Israeli study.
This does not negate the main point about the “bias you didn’t expect.” But there are means to mitigate the damage done by grouchy trial judges.
In common law countries, sentencing decisions are made by trial judges. But the decisions of trial judges don’t count as “precedent,” and therefore are not “the law.” Case law—binding precedent—is made up of the published decisions of appeals courts. Trial judges often have to make their decisions in real time, right there at the trial in front of everyone. Appellate judges mostly read written briefs, have their staffs make preliminary recommendations, think about it awhile, put it aside to sleep on the matter, have their clerks write rough drafts, make edits, and consult with their colleagues before they have to issue an opinion. Binding decisions are made by majority vote. This should compensate for a lot of the randomness implied by the Israeli study.
This does not negate the main point about the “bias you didn’t expect.” But there are means to mitigate the damage done by grouchy trial judges.
If a judge lets too many of the day’s first cases go free, there’s no legal remedy.