The Fundamental Attribution Error

The legal system often ascribes and apportions blame. Decisions are made about whether someone was at fault in an accident, or whether a defendant is guilty. We assume that the actor’s action was primarily the result of a quality of the actor and not merely the by-product of the circumstances in which the actor found himself. The law looks for “a” cause not “the” cause of an event. At other times, we are more willing to excuse otherwise inexcusable behavior when extraordinary circumstances are present such as with the defenses of coercion, necessity, and self-defense.

One error in thinking is when we “explain other’s behavior as resulting predominately from their personality, while we often minimize (or even ignore) the importance of the particular situations in which they find themselves.”[i] This prevalent, but mistaken, tendency has been called “the fundamental attribution error.”[ii] For example, if we observe someone not contributing to a worthy charity, we think of them of stingy, but we don’t consider that may have recently just given money to another charity, and have bills to pay.

The fundamental attribution error is often reversed when someone explains their own behavior. People have the tendency to explain their own behavior in terms of the situation they had found themselves in, rather than in terms of their own dispositions.[iii] Why does the fundamental attribution error exist? Researchers have identified two sources for this error.

The first is the cognitive bias that we are attractive to those things that are the most perceptually salient and equate perceptually salient stimuli with casual stimuli.[iv] When we consider what another person has done, our attention focuses on the person and we have the tendency to ascribe the person’s behavior to qualities of the person. When we think of ourselves, the most salient stimuli are the situational factors we are facing, and then we ascribe causation of any of our behavior to these situational factors.

Another potential cause of the fundamental attribution error is the motivational biases that satisfy our “desire for self-esteem, power, or prestige.”[v] People in our culture believe that we are in control of our own destiny, and that makes us feel better. “After all, if we assume that other people have control over their outcomes, it reassures us that we, too, can control our outcomes.”[vi]

This tendency gives us the “illusion of control.” We want to believe that bad things happen because bad people do bad things, and good things happen because good people do good things. We don’t want to believe, that life, many times, isn’t fair. Bad things happen to good people and good things happen to bad people. The understanding of this tension in our thought process is at least as old as the Book of Job.

Research into assigning blame for an accident involved aspects of the fundamental attribution error. A researcher had people ascribe blame to the owner of a car who parked his car on a hill. The brake did not hold the vehicle and the parked car rolled down a hill. The first situation had the car hitting a tree causing no damage to anyone. In the second situation, the vehicle struck another vehicle causing minimal damage. In the third situation, the vehicle struck a shop, injuring a shopkeeper and child.[vii]

Little blame was ascribed to the car owner when the vehicle caused no damage or slight damage. However, when the car caused harm to the shopkeeper and child, the people wanted the person punished.[viii] People feel better when someone can be blamed for behavior that results in harm. The punishment reinforces the idea that bad things do not happen randomly, but happen because people do bad things and not because good people are placed in bad situations that cause bad things. Anyone who has ever been involved in a sentencing for a negligent homicide has experienced examples of this human tendency.

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[i] Levy, David A., Tools of Critical Thinking, Metathoughts for Psychology, 1997, Long Grove, Ill: Waveland Press Inc. P. 84.

[ii] Roos, L. (1977), “The Intuitive Psychologist and his shortcomings: Distortions in the attribution process.” Advances in expermimental social psychology (Vol. 10), New York: Academic Press.

[iii] Levy, David, 1997, p. 86.

[iv] Ibid. p. 86

[v] Ibid. p. 87

[vi] Ibid. p. 87

[vii] Walster, E. (1966) “Assignment of responsibility for an accident.” Journal of Personality and Social Psychology, 3, 73-79.

[viii] Ibid.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

Anchoring and Adjustment

When I was a defense attorney I couldn’t help but notice how sentences for similar crimes and similar defendants were often different in different counties regardless of judges. There appeared to be different cultures of understanding among counties as to what level of punishment was appropriate for different crimes. Prosecutors in some counties recommend more punitive sentences than prosecutors in other counties for similar crimes and similar defendants. Judges, keying off of the harsher recommendations, punished more severely than judges in other counties for similar crimes for similar defendants.

But even within counties, I also believed that punishment would often vary depending on the prosecutor’s recommendation. The prosecutor’s recommendation was important. If I had a prosecutor that would recommend a lenient sentence, then it was more likely (but not certain) that the defendant would receive a comparatively lenient sentence.

Why is a prosecutor’s recommendation a factor in a judge’s sentencing decision? First, a good prosecutor will use the same sentencing factors that a judge uses to recommend the sentence. Both the prosecutor and the judge may independently arrive at the conclusion that a certain sentence is fair. Secondly, the sentencing judge may be giving some deference to a plea agreement between the parties, so that the plea bargaining process maintains some vitality.

But I believe that what is also occurring is part of the psychological phenomenon called anchoring and adjustment. The prosecutor’s recommendation and the defense attorney’s recommendation operate as an “anchor” in the judge’s sentencing decision. An “anchor” is a starting value from which a decision is made.[i]

In one study, real estate agents were given all the information that agents required for an appraisal of a residential property, including such things as comparables, etc.. The agents were all allowed to view the entire property, and were asked to appraise the property to ascertain a listing price. The only difference in the appraisal packets was that there were different listing prices written on one of the sheets given to the agents. Some listing prices were high and some were low. The listing price was not a variable that should be used in the appraisal of the property, as the appraisal was to set the listing price, and not the reverse.

The results of the research showed that those agents who had packets with higher listing prices appraised the property at higher prices than those with lower listing prices. The agent’s appraisals became anchored by whatever listing price they had seen.[ii]

This anchoring effect is present even when people estimate an answer. One study had participants in front of a “wheel of fortune” and spun the wheel. If the wheel landed on a 65, the experimenter asked, “Is the percentage of African countries in the U.N. greater or less than 65%? The participants answers and then is asked: “Exactly what percentage of African countries are in the U.N.”

Another, participant spun the wheel and it landed on 10. The experimenter asked: “Is the percentage of African countries in the U.N. greater or less than 10%? The participants answered and then was asked: “Exactly what percentage of African countries are in the U.N.” The experimenters found that the answers to the second question were highly correlated to the percentage used in the first question. Subjects that had a high percentage in the first question, provided a high answer on the second question. Subjects that had a low percentage in the first question, provided a low answer on the second. The subjects had been anchored by the first number.[iii]

Research has shown that anchoring effect may also affect the way juries decide criminal verdicts which involve lesser included offenses. Researchers evaluated the order of questions on a criminal verdict using mock jurors. The research showed that verdicts that have the jury consider the most serious offense first and then the lesser included offenses, like those used in Wisconsin, would result in a higher probability of a conviction on the most serious offense than if the verdict would have the lesser included offenses listed first, and then proceed up to the more serious offense.[iv] This research, which I don’t know has been replicated, certainly raises serious and interesting questions about protecting against anchoring effects in jury decisions.

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[i] Plous, Scott, 1993, The Psychology of Judgment and Decision Making, McGraw Hill, p. 145.

[ii] Northcraft, George B., and Margaret A Neale, (1987), Experts, Ameteurs, and Real Estate: An Anchoring and Adjustment Perspective on Property Pricing Decisions, Organizational Behavior and Human Decision Processes, 39, 84-97.

[iii] Plous (1993) above p. 145

[iv] Greenberg, Jeff, Kipling D. Williams and Mary K. O’Brien, (1986) Personality and Social Psychology Bulletin, Vol. 12, No. 1 41-50.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

Erroneous Cost Benefit Analysis of Criminal Justice Programs

The large budget deficits facing both the State of Wisconsin and the federal government will undoubtedly result in reductions in the budgets of many government programs. Some in government are attempting to integrate basic market principles directly into the construction of government programs. For example, grant programs that use investment principles. See For Federal Programs, a Taste of Market Discipline .

Many in government are attempting to evaluate the results of their efforts—to assess the benefits of the program to allow comparison with the costs. The political fight over the funding for government programs often involves attempting to determine which programs have benefits that exceed their costs. A large part of the push for “evidence-based” evaluation of criminal justice programs is to ascertain whether the benefits of a government program exceed its costs.

Those of us in leadership positions within government service have the responsibility to ensure that our program evaluations are legitimate and intellectually rigorous, and not merely a sophistic justification of a favorite program. Incorrect information to guide policy decisions is worse than no information. I would rather drive a car that I know doesn’t have a speedometer than one that I don’t know has a defective speedometer.

I have recently listened to and read reports of evaluations of criminal justice programs that don’t stand-up to basic program evaluation techniques. One glaring error is evaluating the worth of a treatment court in terms of the value of the reduction in the number of days of jail defendants in the program receive over the number of days jail defendants not in the program receive. This comparison is erroneous.

The false comparison goes like this. The cost to the county to house someone in jail is $65 per day. If someone is sentenced under the treatment court program, they get, for example, 10 days in jail, and if they successfully complete treatment court, they don’t have to spend any additional time in jail. If someone does not successfully complete treatment court, they are then sentenced to an additional 100 days in jail. Therefore, the treatment court saves the county 100 days in jail for every defendant who successfully completes treatment court. At a cost of $65.00 per day of jail, the county saves $6,500 for the 100 days. This $6,500 is then compared against the cost of the treatment court, (let’s assume $2,500 per participant) to come to the erroneous conclusion that the benefits of the treatment court are greater than the costs of the treatment court.

Here is why this is an erroneous comparison. The calculated benefits of the treatment court are not the result of the treatment the defendants obtained by participating in the treatment court, but rather a result of a reduction in the jail sentence that has also been added as a component of the treatment court program. A second variable has been introduced. An accurate analysis would be to compare the costs and benefits of 10 days in jail without treatment court with 10 days in jail with treatment (or 110 days in jail with treatment court with just 110 days in jail).

The reduced jail costs are not the result of a reduction in new crimes that result in fewer days of incarceration due to participation in treatment court. The reduced jail costs are merely the result of eliminating 100 days of jail treatment as part of the treatment regiment. As most of the research on the deterrent value of incarceration shows that an extra 100 days in jail will do very little to reduce recidivism regardless of participation in any other program, the most efficient strategy may be to just eliminate the extra 100 days of jail and move on, or to use the conventional strategies of deferred prosecution agreements or probation to ensure treatment rather than use a more resource intensive treatment court.

If a treatment court is found statistically effective in reducing recidivism, is this reduction the result of the treatment alone or is the court component, beyond coercing treatment, a significant operant variable? If the court component is a significant operant variable, what is it about the court component that makes it so? How could that component be delivered most efficiently? Those questions have not yet been answered by the research, and the erroneous comparison certainly does nothing to answer any of them.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

Errors in Group Decision Making

In our society, many consequential decisions are group decisions. Group decisions are subject to many of the same possible errors in the decision making process as individual decisions. An effective group decision will hopefully be a better decision than an individual decision. Haven’t we always been taught that: “Two heads are better than one”?

However, the research shows that group decisions are often worse than individual decisions. One of the culprits that contribute to this phenomenon is “groupthink”. Groupthink is the term for the tendency of a group to make an erroneous decision due to group loyalty and social cohesion. [i]

Examples of decisions made through groupthink are President Kennedy’s Bay of Pigs decision, President Johnson’s decision to escalate the Vietnam War, and President Nixon’s Watergate decisions.[ii] The decision to launch the space shuttle Challenger during cold weather, resulting in its demise, has also been identified as an example of groupthink.[iii]

Janis (1982) identified three major causes of group think. The first is overestimation of the group. The group thinks of itself as more righteous, more intelligent, or more powerful than others resulting in overconfidence. The second major cause is closed-mindedness of the group as the group rationalizes away any challenges to their thoughts. Outsiders (those not considered part of the group) with other views are dismissed as inferior and not worthy of regard.

The third major cause is groupthink is group pressures for uniformity. Individuals self-censor any of their concerns or dissenting views to maintain group uniformity. The individuals do not want to stray from the prevailing view of the group. Although there may be individuals who harbor concerns or dissenting views, there exists a shared illusion of unanimity. Dissenters are pressured to conform to the view of the group. Within the group, may exist a self-appointed “mind-guard” who keeps information that may challenge the group’s decision from the group.[iv]

Preventing groupthink requires a group leader than encourages dissent and criticism.[v] Many in society have been taught that we all should get-along with others, and they are not comfortable being involved with what can sometimes be a bit of rancor during a clash of ideas. But constructive dissent and criticism, not involving ad hominem attacks, are essential to making any good decision.

Group leaders should not state their preferences early in any discussion.[vi] The statement of a preference of a group leader, especially if the group leader is considered an authority, is a sure way to stifle dissent and criticism. Most people will not see any benefit to them in questioning the idea of the leader.

Multiple groups can be set up to make the same decision and then the groups can have a more open discussion of any differing ideas. Group members can discuss the deliberations of the groups with others, and then share those conversations with the group. Also, groups can ask outside experts or others to attend the group meeting and provide input to counter the insularity of the decision making process. Finally, a devil’s advocate should be appointed whose role is to challenge the groups ideas—an especially effective procedure.[vii]

I have been involved in groups throughout my lifetime, and rarely has a group not exhibited aspects of groupthink. Groupthink may not make much difference in a decision involving where to hold the group’s annual banquet, but can lead to catastrophic failure in more important decisions.

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[i] Janis, I.L. (1982), Victims of Groupthink (2^nd ed.) Boston. Houghton Mifflin.

[ii] Ibid.

[iii] Esser, J.K. & Lindoerfer, J.S. (1989). Groupthinkand the space shuttle Challenger Accident: Toward a quantitative case analysis. Journal of Behavioral Decision Making, 2, 167-77.

[iv] Baron, Jonathan, 2008, Thinking and Deciding, 4^th Ed.,, NY, Cambridge University Press, p.225;Plous, Scott, 1993, The Psychology of Judgment and Decision Making, N.Y. McGraw Hill., p. 203.

[v] Ibid. p. 203

[vi] Ibid. p. 204.

[vii] Ibid. p. 205.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

Irrational Persistence of Belief

Humans have a tremendous capacity to resolve conflicting and competing thoughts and evidence. When watching individuals confess to crimes and then later attempt to explain away both the evidence against them and the confession, I can’t help but be reminded of what Nietzsche once wrote: "I have done that, says my memory. I cannot have done that, says my pride, and remains adamant. At last, memory yields.”

Human beings have the ability to distort their views of reality in the direction that fulfills their desires. The tendency for people to not look for evidence that disfavors one’s preconceived ideas, and if they find evidence that disfavors their preconceived ideas, the tendency to find a way to disregard it, is part of confirmation bias as discussed in an earlier blog entry.

Researchers have shown that people maintain incorrect beliefs about things despite overwhelming evidence showing that their beliefs are incorrect. This tendency is called irrational persistence of belief.

Researchers have stated: “The irrational persistence of belief is one of the major sources of human folly, as many have noted. We tend to hold to our beliefs without sufficient regard to the evidence against them or the lack of evidence in their favor.”[i]

We have all explained the evidence and arguments against someone’s position, and then have heard the person say, “Whatever, I still believe my position is correct.” Irrational persistence of belief is combated by remaining open to counter-evidence and criticism of one’s ideas, including being able and willing to do self-critiques of one’s ideas—and then changing one’s position, if warranted. Rigid defensiveness about one’s ideas should signal a possible irrational belief.[ii]

One of the determinants of irrational persistence of belief relates to how people think about how they should think. Some beliefs about thinking lead to poor decision-making, such as the belief that changing one’s mind is a symptom of weakness.[iii] Flip-flopping on an issue because it is politically expedient to do so is one thing. Changing one’s mind in light of new evidence, or in light of a better understanding of the evidence, is a whole other thing. Maintaining a steadfast opinion, regardless of its wrongfulness, is not a virtue; but is a sign of poor thinking.

Decisions makers should attempt to be open to all sides of an argument, and to be aware of our tendency to want to continue to believe in our already formed opinions—regardless of the evidence against them. We need to fight our desire for not wanting to be confused by the facts.

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[i] Baron, Jonathan, 2008, Thinking and Deciding, Cambridge University Press, New York, New York, p. 203.

[ii] Ibid. p. 203.

[iii] Ibid. p. 213.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

Critical Thinking - The Similarity/Uniqueness Paradox

To “think like a lawyer” law students are taught to “reason by analogy”. Reasoning by analogy is a form of inductive reasoning in which one compares a group of facts associated with one phenomenon with the facts associated with another phenomenon and then comes to some reasoned conclusion. In law, the phenomenon being considered is usually a case in front of one court, and another appellate case.

The legal process uses reasoning by analogy to compare one set of facts in a case with another set of facts in a published appellate case, and then make a conclusion on whether or not the cases are similar enough to make a reasoned decision on whether the appellate case is controlling precedent. Reasoning by analogy also comes into use in the law, in evidentiary questions, such as whether or not “other-acts” evidence are relevant to an issue that they are being offered for. We compare the circumstances of the case before us with the circumstances of the “other-acts”.

Reasoning by analogy will involve a potential source of thought error called the similarity-uniqueness paradox.[i] This paradox states that all things are both similar and different. One can identify an infinite number of similarities between two things, and at the same time identify an infinite number of differences. The error arises: “…first, by allowing genuine differences to be obscured by similarities, and second, by allowing genuine similarities to be obscured by differences.”[ii]

For example, the first error is committed when we stereotype groups of people to come to a conclusion about a single individual. We see similarities and allow these similarities to obscure any differences.

I see this error also occurring in the context of sentencing, when the prosecution makes the argument that the defendant is “pure evil”. I have not yet met the person about whom I could not find something good (or bad.)

The second error is committed when we only see the difference and allow these differences to obscure the similarities. That error comes into play when we see only differences and don’t recognize similarities between two different groups. For example, one group of citizens may be comprised of Republicans and the other Democrats, but they are both groups of citizens of the United States, both groups of human beings, etc.

The antidote to this error is to first identify the criteria that will be used for evaluating whether an item is similar or different. The reasons for the criteria must bear on condition that is probative to an issue in the case. For example, why should we care, when comparing cases, if one car was red and the other car was white, or that they were both white? Is the color of the car probative to an issue in the case? Why is the criterion probative?

After probative dimensions are selected, we must ask what similarities and what differences exist between the items being compared. We should be aware of “points of critical distinction” which is the point where two similar items start to differentiate.[iii]

Part of the job of an accomplished advocate is to take all cases that are arguably precedential, and then, through arguing similarities and differences, show the Court, in a credible manner, how all cases support the client’s position. The Court must first decide if the criterion for identifying the similarities and differences are probative of the issue, and then consider all the probative similarities and differences, to determine the precedential mandate of the cases on the case before the court. Some analyses are easier than others.

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[i] Levy, David A., 1997, Tools of Critical Thinking-- Metathoughts for Psychology, Waveland Press, Inc. Long Grove, ILL., pp. 34.

[ii] Ibid. p. 41.

[iii] Ibid. p 43.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

Critical Thinking - Confirmatory Bias

As a prosecutor, I was concerned about the accuracy of decisions in the criminal justice system. I did not want to charge, much less convict, a person who was innocent of the identified crime. Further, I wanted to find and convict those that had actually committed the crime. One of the areas that I identified for professional development for those in law enforcement was critical thinking, decision making, and judgment.

After becoming a judge, I thought it would be wise to further my reading about critical thinking, decision making, and judgment. I wanted to attempt to at least be aware of the situations where one is at a heightened risk of making an erroneous decision. Much empirical research on these topics also exist. In the next several blog entries, I will address some of this research.

The first topic I want to discuss is one that is common in the criminal justice system-confirmatory bias. Confirmatory bias is the tendency to selectively collect and interpret information to confirm beliefs and to avoid information that may disagree with prior beliefs.[i]

Confirmaatory bias can occur under three different scenarios.[ii] The first involves situations where people need to interpret ambiguous evidence. The research shows that a strong tendency exists that people will interpret ambiguous evidence based on their initial beliefs. This type of bias includes “a propensity to remember the strengths of confirming evidence but the weaknesses of the disconfirming evidence, to judge confirming evidence as relevant and reliable but disconfirming evidence as irrelevant and unreliable, and to accept confirming evidence while scrutinizing disconfirming evidence.”[iii]

I asked law enforcement officers to assume that a suspect is innocent, and then consider the evidence. Does the presence of an item of evidence make you change your conclusion that the suspect is innocent? Can the evidence be interpreted in favor of the suspect? Much evidence can be interpreted as either supporting or refuting a claim. Anyone who has watched a trial understands that.

Research has shown that different areas of the brain are used when people consider information that does or does not favor a predetermined conclusion. “Neural information processing related to motivated reasoning appears to be qualitatively different from reasoning in the absence of a strong emotional stake in the conclusions reached.”[iv] One only need to observe the stark differences in the interpretation of the same facts by strong political partisans of different persuasions.

A second situation that involves confirmatory bias occurs when people find a correlation between phenomena separated by time when one doesn’t exist, or when people fail to recognize a correlation when one exists. People have a difficult time interpreting information regarding correlations between two things. This bias has been identified as one of the weakest part of human reasoning.[v]

This bias underlies the power of using statistics rather than just human judgment to determine the efficacy of treatment modalities in the criminal justice system. If one hears someone extol the efficacy of anything, one should want to see the statistical evidence. Most of the time, the statistical evidence doesn’t exist at all, or it is so blatantly biased, in collection and interpretation, that it is useless.

The third situation that involves confirmatory bias is a tendency to selectively collect only that evidence that confirms prior held beliefs. This can be a big problem, as many times, only a short window of opportunity exists to collect evidence of a crime. If confirmatory bias prevents the collection of other evidence, then that evidence can be lost.

Here, one should attempt to ask a question to disconfirm what one believes. For example, if one believes Joe committed the crime, one should not merely ask what would prove that Joe committed the crime, but should ask what evidence would prove that Joe did not commit the crime. Does Joe have an alibi that made it impossible for him to commit the crime? Is Joe’s explanation for what happened physically possible? Of course, one must be very careful in how this evidence is collected, so that confirmatory bias itself does not result in a misinterpretation of ambiguous evidence.

Confirmatory bias can feed itself. If one starts with the belief a suspect is guilty, and then one erroneously interprets ambiguous evidence in a way that supports that belief, that can lead to a stronger belief in the defendant’s guilt, resulting in a greater tendency to engage in confirmatory bias. Confirmatory bias is a danger to truth seeking in the criminal justice system. We should be aware it when making important decisions.

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[i] Budowle, Bruce et al, 2009, A Perspective on Errors, Bias, and Interpretation in the Forensic Sciences and Direction for Continuing Advancement, J. Forensic Sci.., July 2009 Vol. 54. No. 4 pp.798-809, 803.

[ii] Rabin, M and J.L. Schrag, 1999, First Impressions Matter: A Model of Confirmation Bias, Quarterly Journal of Economics, 114(1) Feb. 1999, pp. 37-82.

[iii] Lord, C.G., L. Ross and M.R. Lepper, “Biased Assimilation and Attitude Polarization: The Effect of Prior Theories on Subsequently Considered Evidence”, Journal of Personality and Social Psychology, XXXVII (1979), 2098-2109.

[iv] Westen, Drew, et al, 2006, Neural Bases of Motivated Reasoning: An fMRI Study of Emotional Constraints on Partisan Political Judgment in the 2004 U.S. Presidential Election, Journal of Cognitive Neuroscience 18:11, pp. 1947–1958.

[v] Nisbett, R.E. and L. Ross, Humans Inference: Strategies and Shortcomings of Social Judgment, 1980, Prentice Hall.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.