Psychological Research on the Sentencing Process

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Psychological Research on the Sentencing Process

• A/Prof Jane Goodman-Delahunty
• University of New South Wales
• j.g-delahunty_at_unsw.edu.au

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FOUR KEY PSYCHOLOGICAL ISSUES IN SENTENCING

• OFFENDER
• Opportunity to avoid a life of crime
• COMMUNITY
• Perceived trustworthiness of the legal system
• OFFENDER AND COMMUNITY
• Safety of the community in the future
• Requirements of justice and mercy

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• OFFENDER FEATURES

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HIGH ROAD v LOW ROAD Causes of crime and
blameworthiness

• EXTERNAL CAUSES
• Situational pressures
• Social conditions
• Mitigating factors that
• shape criminal conduct
• Less responsible
• Lighter sentence

• INTERNAL CAUSES
• Crime under control of offender
• Motive
• Character/predisposition
• More responsible
• More severe sentences

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• COMMUNITY CONCERNS
• Confidence in justice system

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CONFIDENCE IN LEGAL SYSTEM?

• Is the punishment effective?
• Evidence to support major goals of punishment?
• Incapacitation Retribution Deterrence
• Rehabilitation Restoration
• Psychology of punishment
• Disparities in sentencing decisions
• Sources of variation
• Offender, judge, victim features
• Unrecognised influences and cognitive biases

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Retribution, deterrence and sentence length

• Retribution and deterrence theories assume a
  multiplicative relationship between sentence
  duration and intensity l
• LONGER SENTENCE MORE AVERSIVE
• Studies of painful experiences reveal adaptation
  to punishment and how negative experiences are
  recalled
• Snapshot comprised of the average of most
  extreme pain and affect towards the end of the
  experience
• MAXIMUM INTENSITY END INTENSITY

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Psychology of sentence length

• The end of a short sentence is experienced as
  aversively as its beginning.
• The end of a much longer sentence is recalled as
  increasingly less aversive at its end.
• Lengthening sentences may reduce their recalled
  negative character.
• Imprisonment is less effective as punishment as
  sentence length increases - the cost of longer
  terms is near constant, but the punitive bite
  steadily diminishes over time.
• (Kahnemann, Robinson Darley)

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Variation in sentencing decisions

• Offender demographics race, gender
• Male and black offenders 50 more likely to
  receive longer sentences than women and white
  offenders (Ulmer, 1997).
• Judge demographics race, gender
• Over 50 of the variance in sentencing
  attributable to features of the presiding judge
  (Hogarth, 1971,
• Female judges more lenient on female offenders
• Black judges more severe to black defendants

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Variation in sentencing decisions

• Individualized judicial heuristics
• Rely on a small number of factors
• Different judges rely on different factors
• Often use only one cue
• - Prosecutors request 64 of 555 cases in NW
  Spain (Farina, Arce Novo 2003)
• - Parole officers recommendation 84 simply
  accepted the parole officers recommendation
• Inconsistencies between judges
• Depart from the formal principles of law and due
  process (Dhami, 2005 Dhami, 2004 Dhami, 2003
  Dhami Ayton, 2001)

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Judging study

• Participants 15 male, 7 female municipal judges
• Task Set bail bond for an alleged prostitute
• Materials Copy of citation location, date of
  alleged crime Arresting charge (prostitution),
  defendant employment record, length of residence
  at address
• Prior conviction of prostitution 6 months before
• No failures to appear in court
• Prosecution recommendation against release on own
  recognizance
• Bond assessment form

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Write down .

• What will happen to you as you physically die
• What emotions does the thought of your own death
  arouse?

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Results

• Average bail 50 v 450
• Sole difference between groups was
  self-reflection about own mortality before
  sentence.
• In-group identification is bolstered, offenders
  seen as out-group members, punished more severely
• If victim is a member of an out-group, offense is
  rated less serious, and punishment is reduced.
• Replicated in more than 100 subsequent studies
• Rosenblatt, Greenberg, Solomon, Pyszczynski
  Lyon 1989

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Terror management theory

• Awareness of human vulnerability and mortality
  salience
• Security in those who adhere to own cultural
  values
• In a just world, bad things do not happen to good
  people
• Positive response to those who bolster cultural
  anxiety buffers, negative response to moral
  transgressors who threaten them by violating
  cultural norms and values.
• Punish those who break cultural rules

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Variation in sentencing decisions

• Robust severity effect across 160,000 judicial
  sentences, based on offense seriousness
• Different penalties for similar offences based on
  qualities of the victim, not the offence (Erez,
  1991)

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Sentencing based on qualities of victims

• Punishment more severe when the victim depicted
  as innocent vs a dangerous criminal (Alicke
  Davis, 1989)
• More perceived suffering to a victim who was a
  loyal husband than a loner, and higher
  sentence to defendant even if defendant unaware
  of victim identity at time of offense (Greene,
  1999)

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Sentencing based on victim coping style or injury

• More punitive sentences when victims cope poorly
  after the crime
• (Hills Thompson, 1999).
• Rate own feelings of sympathy higher, impose a
  higher prison term when the VIS describes a
  severe v mild emotional injury
• (Nadler Rose, 2003)

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Psychology of Victim Impact Statements

• Heinousness of crime evokes emotional responses
• Severe outcomes stimulate anger
• Angry moods reduce in-depth, systematic analyses,
  increase reliance on stereotypes
• Hindsight bias more egregious injuries result in
  more convictions and more severe sentences

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• OFFENDER AND COMMUNITY CONCERNS
• Safety of the community
• Reducing recidivism
• Justice and mercy

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FUTURE DANGEROUSNESS

• Controversy over expert evidence
• Prospective harm v past offending conduct
• Often implicit theories of causation of crime
• Actuarial/static v clinical/dynamic assessments
• Influence of the form of the evidence
• Same information presented using actuarial v
  clinical evidence of risk of future dangerousness
• Actuarial evidence produced higher ratings of
  dangerous (Krauss Sales).

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Expert reports on future risks

• Whenever a psychologist or a psychiatrist
  testifies during a defendants competency
  hearing, the psychologist or psychiatrist shall
  wear a cone-shaped hat that it not less than two
  feet tall. The surface of the hat shall be
  imprinted with stars and lightning bolts.
  Additionally, the psychologist or psychiatrist
  shall be required to don a white beard that is
  not less than 18 inches in length, and shall
  punctuate crucial elements of his testimony by
  stabbing the air with a wand. Whenever a
  psychologist or psychiatrist provides expert
  testimony regarding the defendants competency,
  that bailiff shall dim the courtroom lights and
  administer two strikes to a Chinese gong.
• State of New Mexico

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Can people change?

• Nothing works review of 274 studies of programs
  aiming to reduce recidivism (1974), results of
  rehabilitation successes overlooked.
• Community sentences less thoroughly researched
• Positive reinforcement

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BALANCING JUSTICE AND MERCY IN SENTENCING

• Not just a legal decision, also a moral one.
• - factual accuracy and moral accuracy
• Expression of communitys moral sense of what
  constitutes just punishment based on the
  offenders conduct and life story.
• Options for more community input?
• Community input via juries?

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How should mercy season justice?

• Ones legal right does not make one right
• Fairness may demand that offenders receive
  different sentences for similar offenses.
• - room for discretion by judges

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CONCLUSIONS

• Future empirical research directions
• Evaluations of rehabilitative and restorative
  sentences
• Ways to minimize common cognitive and emotional
  biases
• Increase community participation and
  representation
• Public education

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References

• Alicke, M.D., Davis, T.L. (1989). The role of
  posteriori victim information in judgments of
  blame and sanction. Journal of Experimental
  Social Psychology, 25362-377.
• Blumstein, A., Cohen, J. (1980). Sentencing of
  convicted offenders An analysis of the publics
  views. Law and Society Review, 14, 223.
• Carroll, J.S., Perkowitz, W.T., Lurigio, A.J.,
  Weaver, F.M. (1987). Sentencing goals, causal
  attributions, ideology and personality. Journal
  of Personality and Social Psychology, 52,
  107-118.
• Dhami, M.K. (2005). From discretion to
  disagreement Explaining disparities in judges
  pretrial decisions. Behavioral Sciences and the
  Law, 23, 367-386.
• Dhami, M.K. (2004). Conditional bail decision
  making in the magistrates court. The Howard
  Journal, 43, 27-46.
• Dhami, M.K. (2003). Psychological models of
  professional decision making. Psychological
  Science, 14, 175-180.

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• Dhami, M.K., Ayton, P. (2001). Bailing and
  jailing the fast and frugal way. Journal of
  Behavioral Decision Making, 14,141-168.
• Erez, E. (1991). Victim impact statements. Trends
  and Issues in Crime and Criminal Justice, 33,1-4.
• Goodman-Delahunty, J., ForsterLee, l.,
  ForsterLee, R. (2005). Dealing with the guilty
  offender. In N. Brewer K.D. Williams (Eds.)
  Psychology and Law An Empirical Perspective.
• Greene, E. (1999). The many guises of victim
  impact evidence and effects on jurors judgments.
  Psychology, Crime and Law, 5,331-348.
• Hills, A., Thompson, D. (1999). Should victim
  impact influence sentences? Understanding the
  communitys justice reasoning. Behavioral
  Sciences and the Law, 17, 661-671.
• Hogarth, J. (1971). Sentencing as a human
  process. Toronto Toronto University Press.
• King, N.J., Noble, R.L. (2005). Jury sentencing
  in non-capital cases Comparing severity and
  variance with judicial sentences in two states.
  Journal of Empirical Legal Studies 2, 331-367.

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• Lawrence, J.A. (1988). Expertise in judicial
  decision making. In M.T.H. Chi, R. Glasser M.
  Farr (Eds.) Informal Reasoning and Education.
  Hillsdale, NJ Erlbaum.
• Myers, B., Greene, E. (2004). The prejudicial
  nature of victim impact statements Implications
  for capital sentencing policy. Psychology, Public
  Policy and Law, 10, 492-515.
• Nadler, J., Rose, M.R. (2003). Victim impact
  testimony and the psychology of punishment.
  Cornell Law Review, 88, 419-438.
• Rosenblatt, A., Greenberg, J., Solomon, S.,
  Pyzczynski, T., Lyon, D. (1989). Evidence for
  terror management theory, I The effects of
  mortality salience on reactions to those who
  violate or uphold cultural values. Journal of
  Personality and Social Psychology, 57, 681-690.
• Ulmer, J.T. (1997). Social worlds of sentencing
  Court communities under sentencing guidelines.
  Albany, NY State University of New York Press.

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• Male and black offenders are 50 more likely to
  receive longer sentences than women and white
  offenders (Ulmer, 1997).
• The biasing effect of gender is related to the
  gender of the judge as well as the gender of the
  offender (Mulhausen, (2004).
• Mulhausen (2004) analysed the interaction between
  race and gender characteristics of judges and
  offenders and found that
• Female defendants received more lenient sentences
  than males.
• The most lenient sentences were given to female
  offenders by female judges.
• Black offenders received longer sentences when
  black judges were presiding over their case.