Towards A Map Of Sentencing

Towards A Map Of Sentencing Presented by: Mrs. Plesničar Date: 2 February 2022 What Maps Are We Using In Sentencing Research? - Procedure - Discretion - Sentencing Policy - Disparity - Social context - Mechanics - Bias - Court organization - Comparative Sentencing research - Ulmer, 2012 • “The vast majority of sentencing research takes the form of regression- based studies of one or another sentencing or case processing outcome. I have no quarrel with this, and have done a good deal of such research myself. I have always believed, however, that the coefficients in regression models are vital yet merely indirect windows into sentencing processes and their contextual embeddedness.” Two Levels Or Maybe Three? - Above ground • What we see & think has impact • Regulation • - - Structural" In between • What we see & don't consider • Sentencing architecture? • Structural + individual" Underground • What we don't see & think has impact • Psychology • Individual" The psychology - Main issue: disparity - Areas of research: • Prejudice • Cognitive biases • Motivation • Routines / Habits • Stress • Role models • Cultural psychology The law - Substantive law / sentencing law • Main issue: how to structure sentencing discretion? • Additional issues: mitigating and aggravating circumstances, sentencing multiple offenders, types of sentences?, guilty-plea discounts... - Procedural sentencing law • Main issue: decision-maker, sentencing procedure, reasoning, standard of proof, plea bargaining • Structural" law  Legal positions in criminal justice o Judiciary: hierarchy, career o Prosecution: role, career o Experts Human decision-making... judicial decision-making - Human decision-making is an interplay between automatic (system 1) and reflective (system 2) features of our minds (Kahneman, 2011) - Automatic decision-making • Prevalent • Largely out of our control Choice architecture - Decision-makers „do not make choices in a vacuum" (Thaler, Sunstein, & Balz, 2013), but rather in an environment, whose features may help, construct a person's choice" (Camilleri & Larrick, 2015). - Choice can be influenced by „organizing the context in which people make decisions" (Thaler at al., 2013) - There is no such thing as a „neutral environment" or a „neutral choice architecture" (Thaler et al., 2013; Yeung, 2016). Choice architecture and the law - Typically: can / should the law,„ nudge" people to make „right" decisions? • Libertarian paternalism: (gently) guiding while still letting decide  Libertarian  Paternalism • - Lots of criticism Can the law avoid creating the environment in which decisions are made? • General public • Professional legal decision-makers How does the law create the DM environment - Coercion: • bringing about, or threatening to bring about, some unwelcome consequence if V does not perform that action; - Inducements: • a technique through which the choice architect (D) seeks to encourage another (V) to engage in a desired action, by offering to provide some kind of benefit to V if she engages in that action; - Nudge: • a technique through which the choice architect (D) seeks to encourage another (V) to engage in a desired action by intentionally arranging the choice environment to render it systematically more likely that V will take the action D desires while allowing V to easily and cheaply avoid taking the action preferred by D Sentencing architecture - The environment" in which the sentencing decision is made helps " shape the decision - There is no neutral environment: everything leads to something? - What is environment made of? SENTENCING ARCHITECTURE - - Sentencer • Way of structuring sentencing procedure: e.g. one phase / two phase • Giving reasons / Sentencing remarks • Default choices • Guilty pleas • Sentencing options • Way of structuring discretion: ranges, guidelines, grids • Mandatory minimums • Three strikes Sentence • Court culture • Role of victim • Role of public: lay/general • Role of prosecution • Role of experts • Career advancement: e.g. avoiding appeals • Court administration: e.g. closing cases • Avoiding complications: e.g. remand decisions Example 1: Passing A Community Sentence Vs. Pas A Conditional Sentence In Slovenia - Community sentence • Right type of offence • Decision to imprison rather than to admonish with conditional sentence + determine prison sentence + give reasons* • Request from defendant • Decision that imprisonment is not absolutely necessary + determine community sentence + give reasons for community sentence* • - Keep monitoring community sentence until fully served Conditional sentence • Right type of offence • Decision on conditional sentence + determine sentence length and probationary period + give reasons* Example 2: A guilty plea - Judge • A nudge?!  Case closed  No lengthy trial  No giving reasons  No appeals - Defendant • An inducement:  A reduced sentence is the reward The environement - - The law • Substantive law / sentencing law → coercive? • Procedural sentencing law • Structural" law The not-law • Default decisions • Expectations (court culture) • Self-preservation • Remand decisions