Nudge the judge? Theorizing the interaction between heuristics, sentencing guidelines and sentence clustering

Abstract

Although it has long been acknowledged that heuristics influence judicial decision making, researchers have yet to explore how sentencing guidelines might interact with heuristics to shape sentencing decisions. This article contributes to addressing this gap in the literature in three ways: first, by considering how heuristics might help produce the phenomenon of sentence clustering, in which a significant proportion of sentences are concentrated around a small number of outcomes; second, by reflecting on the role of sentencing guidelines as a feature of the environment within which sentencing decisions are made; and third, by analysing the guidelines from Minnesota and from England and Wales, theorizing how their content might interact with heuristics to make clustering more or less likely. Ultimately, we argue that sentencing guidelines likely affect the role played by heuristics in shaping sentencing decisions and, consequently, that their design should be informed by research evidence from the decision sciences.

Prosecuting from the bench? Examining sources of pro‐prosecution bias in judges

“…Structural interventions, like behavioural nudges, could bypass conscious reflection as “bias interrupters” that could alter behaviour and decision‐making with little effort (Sunstein, 2015). For example, bench cards and information that may bear on decision‐making have been theorized as nudges to influence judicial behaviour at different stages (Marder & Pina‐Sánchez, 2020). England and Wales include explicit lists of mitigating and aggravating factors on bench cards as written reminders for judges to consider them alongside available guidelines during sentencing proceedings; this has been thought to explain the recent increased use of these factors in sentencing (Roberts et al, 2018).…”

International Criminal Law Protection of Environmental Rights and Sentencing Based on Artificial Intelligence

“…In [ 12 ], the authors studied the transformation from uncertain sentencing policy to decisive sentencing policy and the use of sentencing guidelines. In [ 24 ], the authors studied the role of sentencing guidance influence heuristics in shaping sentencing decisions through three methods. In [ 25 ], based on the data of hundreds of criminal cases in a county court in 2015, the authors studied the impact of legal and extrajudicial factors on sentencing results.…”

Risk assessment savvy: The imperative of appreciating accuracy and outcome

“…Sentencing is ripe for the influence of heuristics as judges work under both time and information constraints. They do not have a generous amount of time to devote to any given case, they do not have access to all of the information about the defendant that could prove useful, and, like all of us, they do not have the cognitive ability to consider in an efficient manner the competing case complexities related to the offender, victim, circumstances of the crime, motivations, backgrounds, likely effects of interventions, and so forth (Dhami, 2013; Downs, 1967; Marder & Pina‐Sánchez, 2018; Rachlinski & Wistrich, 2017).…”