As David Cameron’s approach to crime gets “tough but intelligent” (if he says so himself), now might be the time for the rest of us to take a tough but intelligent approach to staying out of prison. For it can be done – and not just through blameless living.
One fairly sure way is to appear before a jury right after lunch. It’s an old courtroom legend – that the outcome of a trial depends on what the judge ate for breakfast – but here's some evidence to back it up. A scientist called Shai Danziger collected the results of 1,112 hearings from prisons in Israel, plotting how often judges granted parole against how long it had been since they last ate. The results were remarkable. The odds of getting out of jail free start at about 65 per cent right after everyone’s had a sandwich and then fall off to almost zero after a couple of hours. Feed the judges another sandwich and their generosity climbs right back up again.
Human willpower, you see, is a finite resource. When judges resist the hunger pangs, they are dipping in to reserves of stamina, making tempers short and sentences long.
Take a look at this experiment, conducted by Baba Shiv at Stanford. It was constructed as an exercise in resisting temptation, in the form of a slice of chocolate cake. Subjects were asked to remember strings of numbers (not long strings, just two to seven digits). Resisting the cake was easy after two digits but became almost impossible after seven. It took just a couple of extra pieces of information to wear down the subject’s willpower completely. Willpower is that weak. Life only needs to batter you slightly and you will go for the harsher jail sentence, leave the washing-up for tomorrow, have another drink, nick a watch.
And when your willpower is worn down, you are more likely to make snap judgements based on stereotypes, becoming sexist and racist. And this is a problem for judges, because evidence shows they are already vulnerable to these sorts of influences. So, if you want to stay out of prison, try being female rather than male, white rather than black, baby-faced rather than mature-looking. If you are a psychopath, make sure your defence explains the biology behind this to the jury. A study recently written up in the journal Science showed that this reduces sentencing by an average of one year.
If you want to stay out of prison, it also helps to make your statement rhyme. This loophole in judgement is known as the “Keats heuristic”, in which beauty is mistaken for truth, rhyme for reason. Johnnie Cochran used it to get an acquittal for O J Simpson, with his signature phrase: “If it doesn’t fit, you must acquit.” Sounds right, doesn't it?
Wriggling out of a jail sentence or falling into one undeservedly has never been so easy. However, if, for symmetry, we were to take a tough but intelligent approach to jury standards, there are a couple of things we could do.
According to Birte Englich from the University of Cologne, making judges play games that teach them their own biases can help. Mandatory guidelines for sentences have been introduced in America (although they are being resisted) and there have been initiatives in New South Wales to increase the size of juries. Compulsory biscuit eating before each hearing can only be the next step.