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Sentencing

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Abstract

This is a forthcoming chapter on criminal sentencing for the second edition of the APA Handbook of Forensic Psychology. The chapter begins by describing the historical context, standards, goals, and significance of criminal sentencing in the United States (U.S.). In an effort to elucidate the key influences to and practices by which courts reach sentencing decisions, we then describe psychological and cognitive-behavioral theories relevant to sentencing decision-making. After describing these theories and principles guiding our understanding of the cognitive and computational shortcuts involved in decision-making, we review relevant sentencing research and case law. Key legal, extralegal, and extraneous factors that can influence sentencing are also described to provide a more comprehensive view of sentencing decision-making in practice. We then discuss the significance of sociocultural identities and systemic inequalities in sentencing related to past and current practices, as well as concerns regarding the future of sentencing decision-making that may increasingly rely on automation. Finally, policy issues are discussed, with a particular focus on de-biasing humans, machines, and improving overall sentencing decision-making.
Pre-Print Version: April 26, 2023 Chapter: Sentencing in the APA Handbook of Forensic Psychology, 2nd edition
Chapter: SENTENCING
Mia A. Thomaidou & Colleen M. Berryessa
In the criminal justice system, sentencing involves decision-making processes that weigh various
goals of punishment, including the incapacitation or rehabilitation of individuals who have
broken the law, deterring them and others from committing future crimes, providing restitution
to crime victims, and seeking retribution for the offense committed (Ezorsky, 2016). Both legal
and extralegal factors can bear on sentencing decisions. Legal factors directly relate to the
offense or an individual’s criminal history, while extralegal factors include characteristics such
as one’s likelihood to reoffend, their rehabilitation potential, expressions of remorse, or traits
relevant to the victim and or a defendant’s background (18 U.S.C. § 3553(a)., 2018). In practice,
sentencing decision-making can also be influenced by other peripheral factors, including
sociopolitical and courtroom contexts, social characteristics of the defendant, or psychological
factors affecting the judge; such extraneous influences on decision-making may lead to unfair
practices and sentencing disparities (Danziger et al., 2011; Nellis, 2021; Philippe, 2020).
The practice of making decisions–whether it be humans, computers, or some form of
artificial intelligence–necessarily involves processing information through existing systems
shaped by prior knowledge (Kleinberg et al., 2017; Rehak et al., 2010). Such systems are
inclined to automate information processing in ways that can often lead to flawed and unjust
outcomes (Shah & Oppenheimer, 2008; Tversky & Kahneman, 1974). While decision-making is
an inherently complex cognitive process, scientific research can provide important insights into
the practices and limitations of human and mechanical decision-making.
A range of academic disciplines across different types of social, political, legal, behavioral,
and psychological research have sought a more holistic understanding of the factors and
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processes affecting human decision-making in different social contexts and environments. In this
chapter, we review and discuss research that suggests that the thinking and decision-making of
legal actors, including judges, attorneys, jurors, probation and parole officials, and expert
witnesses, are commonly influenced by broader sociopolitical contexts, their beliefs and
misconceptions about particular types of defendants, cognitive shortcuts such as heuristics and
intuitions, and their own psychosocial characteristics and moral values (Danziger et al., 2011;
Spamann & Klöhn, 2016). Recent advances in computer science and research into the ethics of
artificial intelligence in criminal justice are also reviewed, as these developments have begun to
address and suggest solutions for the computational shortcomings often seen in algorithmic
decision-making and risk assessment tools sometimes used in the criminal justice system
(Kleinberg et al., 2017, 2018). As we discuss in detail later in the chapter, such work can
potentially lead to policy and practical changes that minimize inequalities and injustices in
criminal sentencing.
This chapter begins by describing the historical context, standards, goals, and significance of
criminal sentencing in the United States (U.S.). In an effort to elucidate the key influences to and
practices by which courts reach sentencing decisions, we then describe psychological and
cognitive-behavioral theories relevant to sentencing decision-making. After describing these
theories and principles guiding our understanding of the cognitive and computational shortcuts
involved in decision-making, we review relevant sentencing research and case law. Key legal,
extralegal, and extraneous factors that can influence sentencing are also described to provide a
more comprehensive view of sentencing decision-making in practice. We then discuss the
significance of sociocultural identities and systemic inequalities in sentencing related to past and
current practices, as well as concerns regarding the future of sentencing decision-making that
3
may increasingly rely on automation. Finally, policy issues are discussed, with a particular focus
on de-biasing humans, machines, and improving overall sentencing decision-making.
I. IMPORTANCE OF THE PROBLEM
Despite a general downward trend in incarceration rates since 2008–when the number of
incarcerated individuals reached an all-time peak–the U.S. still has the highest incarceration rate
in the world (Kang-Brown et al., 2021). In 2008, 2.3 million people were imprisoned, while 4.3
million were under some form of community supervision (Kang-Brown et al., 2021). Since then,
imprisonment rates have declined steadily. By 2017, the number of incarcerated individuals had
decreased to 2.2 million, with 3.7 million on probation, 844,000 released on parole, and 6,400 in
civil commitment (Kang-Brown et al., 2021; Wagner & Rabuy, 2017). In 2019, just before the
COVID-19 pandemic, 2.1 million people were incarcerated, 3.5 million were on probation, and
766,000 were on parole (Doleac & LaForest, 2022).
The COVID-19 pandemic had a significant impact on incarceration rates. Existing problems
of prison overcrowding and restricted access to medical treatment prompted an effort to
minimize major outbreaks of the virus–not only in order to save lives within prisons and jails,
but also to prevent the virus from infecting staff working in correctional facilities who may have
then spread it back to the community. In June 2020, the number of incarcerated individuals in the
U.S. dropped to 1.8 million–a 14% decrease compared to the year prior–and by March 2021, this
number had dropped by a further 2% to 1.7 million people (a rate of 537 per 100,000 people)
(Kang-Brown et al., 2021). This represented a 23% decline in incarceration from 2008 to 2021.
Since March 2021, as vaccines against the virus became widely available and COVID-19
restrictions began to ease, incarceration rates have seen a steady increase; recent estimates
suggest that almost 1.9 million individuals in the U.S. were incarcerated by the end of 2022
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(Sawyer & Wagner, 2022; Widra & Herring, 2021). At the same time, community supervision,
which increased in 2020 in an effort to reduce prison overcrowding during the pandemic, has
decreased to an estimated 2.9 million people on parole in 2022 (Sawyer & Wagner, 2022).
High incarceration rates in the U.S. have been a complex issue subject to much debate and
analysis. The U.S. imprisons the largest portion of its population as compared to any other
country in the world, with an average incarceration rate of approximately 700 out of every
100,000 people in the past decade; comparatively, this is more than five times higher than the
incarceration rate in the United Kingdom, while other western countries such as Canada,
Belgium, and France, have had imprisonment rates of around 100 per 100,000 people
respectively (Widra & Herring, 2021).
Generally, approximately 70% of convictions in American courts result in prison sentences
(Widra & Herring, 2021). Notably, high incarceration rates in the U.S. cannot be attributed to
higher crime rates. Countries such as Belgium and France have similar rates of violent crime as
the U.S., but their incarceration rates are substantially lower (Widra & Herring, 2021). This
suggests that other factors, such as the structure, norms, sentencing policies, or political
motivations in the U.S., may contribute to mass incarceration rates. One set of factors that has
contributed to high incarceration rates in the U.S. is a range of tough-on-crime policies that have
been implemented in the last five decades. These policies, which included mandatory minimum
sentences and harsh penalties for certain low-level offenses, have led to record numbers of
Americans being confined in jails and sent to prison (Austin et al., 2017; Hanna, 2016).
Importantly, the correctional system also faces detrimental issues of disparity in the
sentencing of demographic groups, including sentencing discrepancies between men and women,
as well as critical inequalities in the sentencing of people of different ethnic and racial
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backgrounds (Nellis, 2021; Sawyer & Wagner, 2022). Such inequalities are not only indicative
of major systemic problems in sentencing, but they also suggest that sentencing decision-makers
might be influenced by extraneous factors–such as their own experiences, cognitive biases,
psycho-social factors, and subjective perceptions of defendants–that can also lead to disparities
in sentencing outcomes for certain defendants.
Goals of Sentencing
To meaningfully assess current practices and problematic aspects of sentencing, it is first
important to understand the philosophical objectives and goals of criminal punishment. Although
they may differ across the literature, five major goals of criminal sentencing commonly sought in
democratic societies, including the U.S., are incapacitation, rehabilitation, deterrence (specific
and general), restitution (sometimes also called restoration), and retribution (Ezorsky, 2016;
Plantz et al., 2023; Small, 2020). The objectives of incapacitation, rehabilitation, and specific
deterrence aim to protect society from future harm by a particular defendant. Incapacitation may
involve a number of measures that restrict an individual’s freedom or movement. Rehabilitation
aims to change an individual’s behavior or underlying reasons for offending. Specific deterrence
refers to the expectation that the weight of punishment should deter an individual from
committing a future crime, while general deterrence focuses on providing an example to other
members of society to avoid similar behaviors in anticipation of similar punishments. The
objectives of restitution and, at least in part, retribution, focus on proportionality and morality–
with punishment aiming to restitute justice and moral values for victims and society as a whole.
Specific goals of sentencing are not defined in the U.S. Constitution, but some are broadly
described in the Sentencing Reform Act of 1984 and the 1962 Model Penal Code. Interestingly,
the goal of retribution is notably absent in both. The lack of written rules and guidance regarding
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the objectives that criminal punishment should achieve may be one of the reasons for sentencing
disparities between different courts, jurisdictions, and defendants. This ambiguity has also left
sentencing standards more open to political influences. Notably, between 1970 and 1990,
political motivations targeted judicial leniency and focused on retribution-based reforms that
targeted a “war on crime” for both serious and less serious offenses; this ultimately led to harsh
sentencing policies and mass incarceration that has disproportionally affected minority
populations (Small, 2020). Despite a lack of evidence that harsher sentencing policies or
targeting certain types of offenses would lead to crime reductions, such retributive penal reforms
were, in part, possible because of the absence of codified sentencing rules.
Types of Sentences
Sentencing can take many shapes and forms. Incapacitation could be achieved by confining an
individual in a prison, treatment facility, or at home, while the federal government and some U.S.
jurisdictions retain the right to impose a death penalty. Rehabilitation can either occur within a
prison through various programs or outside formal criminal punishments within forensic and
civil treatment facilities. The hardship and suffering associated with restricting individuals’
freedoms also aim to deter them and other members of society from committing future crimes, as
well as to provide restitution and retribution for the acts committed. The objectives of criminal
sentencing may also be fulfilled by less restrictive forms of punishment, such as probation,
community service, or economic sanctions. Here, we review some common categories or forms
of criminal sentences in the U.S.
Incarceration. For serious crimes and in cases where a defendant is thought to pose a risk to
the community, a judge may impose a custodial sentence. Imprisoning defendants removes them
from society where they may pose a threat. However, prisons are also referred to as correctional
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facilities–as they aim to reshape individuals either by imposing punishment in itself or through
particular rehabilitative programs. The effectiveness of imprisonment has been contested in the
past decades. The prison environment provides an unlikely setting for improving social behavior,
while educational, occupational, or psychological therapeutic programs are often not mandatory
or poorly implemented (Farrington et al., 2003; Mullen et al., 2019). As a result, research
findings conclude that prisons often do little to prevent recidivism and may traumatize
individuals or even push them further into the psychological or economic circumstances that
caused them to offend in the first place (Gordon, 2013; Listwan et al., 2013).
Treatment. In recent decades, more sophisticated social, behavioral, and psychological
interventions have begun to be implemented in the criminal justice system. A standard for
sentencing individuals with severe psychiatric disorders, such as those who are found not guilty
for reason of insanity, to civil commitment in a mental health facility has existed for decades in
the U.S. More recently, sentencing decisions have also sometimes begun to incorporate treatment
orders for various psychiatric disorders, such as addiction, personality, and mood disorders, or
post-traumatic stress disorder (Gittner & Dennis, 2021).
Nevertheless, research has characterized mental illness as a double-edged sword for
sentencing. Sentencing discretion not only allows for judges or decision-makers to potentially
adopt more treatment-oriented or therapeutic principles into their sentencing decisions, but also
may allow them to adopt more stigmatizing views of defendants with certain disorders as more
dangerous or less amenable to rehabilitation into such decisions as well (Aspinwall et al., 2012;
Berryessa, 2018; Cheung & Heine, 2015). Currently, a growing number of specialty courts offer
more targeted and informed decision-making for individuals that may benefit from treatment
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(Kaplan et al., 2018). Still, to date, the efficacy of treatment programs and specialty courts is
often found to be underwhelming or inconclusive (Collins, 2021).
Diversion. In-patient and outpatient treatment programs may be used as intermediate
sanctions in sentencing that aim to divert individuals out of the prison system. However, front-
end diversion is also pursued through other types of non-custodial sentences. For example,
individuals may receive intermediate sanctions requiring them to register with daily reporting
centers, complete a certain number of hours of community service, or attend boot camps that
provide discipline-focused training (Kratcoski, 2023). Moreover, technological advancements
are helping to make electronic monitoring and house arrests more secure (Austin et al., 2017;
Sandøy, 2020). Back-end diversion also uses such technology to monitor defendants, with
decision-makers being able to grant early release from prison in exchange for technological
monitoring as a back-end diversion sanction. Today, not only can defendants be monitored in
terms of their location, but ankle bracelets have also been developed to measure whether an
individual has consumed alcohol (Brobbin et al., 2022). While non-custodial sanctions may, in
principle, be less punitive than incarceration, they can also be intrusive and disruptive. They can
hinder a defendant’s social and rehabilitative progress during a critical time when an individual
may be expected to meet certain expectations based on the conditions of their release.
Probation. In some cases, a judge can opt to suspend a sentence for a period of time and
release the defendant into the community under certain conditions–called probation. In some
ways similar to being granted parole in which individuals are released from prison under certain
conditions, a defendant on probation may need to participate in a rehabilitation program, wear an
ankle bracelet, report to a day center or officer, or face other restrictions in their social
interactions, lifestyle, or behavior. Probation allows low-risk defendants to remain in the
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community and can also be an effective means of reducing prison overcrowding. For example,
during the COVID-19 pandemic, many states took a more community-based approach to the
sentencing of lower-risk defendants and probation sentences significantly increased; while the
number of people in prisons and jails decreased sharply, early data indicates that this did not
compromise public safety (CUNY Institute, 2021; Sawyer, 2022).
Economic sanctions. Economic sanctions may be applied as monetary penalties for criminal
acts for a variety of reasons, including the covering of the costs of criminal justice administration
or paying of restitution to victims. While a monetary fine can be the sole sanction ordered for
low-level offenses or minor infractions, such as speeding, economic sanctions may also be added
as a part of a custodial or non-custodial sentence in order to pay restitution to the victim of a
crime or to cover the costs of the criminal justice process. For example, defendants under house
arrest will usually be ordered to pay for supervision or electronic monitoring fees. Economic
sanctions have increased in recent years as compared to past decades; this is partly because of a
rise in the costs of the criminal justice system and due to an increased focus on restitution (Bing
et al., 2022; Menendez et al., 2019).
Discretion and Sentencing Guidelines
Throughout Western legal history, debates over balancing too much and too little discretion in
sentencing have been longstanding (Samaha, 1989). Criminal sentencing in the U.S. has been
shaped through several waves of increasing and limiting judicial powers. Stemming from the
English Common Law system, the American criminal justice system was originally focused on
significant flexibility and case-by-case decision-making (Fuller, 2019). After the American
Revolution, however, reforms began to target the boundless judicial discretion that was in place
under English law and this prompted the implementation of procedural rules that began to restrict
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judicial discretion. By the early 1900s, a new shift in the understanding of criminality also
introduced rehabilitation as a main goal of sentencing. At that time, systems of indeterminate
sentencing placed increased discretionary powers on correctional staff, such as parole board
members and officials, to decide when defendants were reformed and could be released from
prison (Fuller, 2019). To address the sentencing disparities that stemmed from indeterminate
sentencing, mandatory minimum sentences and rigid guidelines began to be introduced and
adopted across the U.S. in the 1970s and 1980s (Small, 2020). Notably, the Sentencing Reform
Act of 1984 established the U.S. Sentencing Commission and crystalized a move towards
substituting discretion for sentencing guidelines and formulas that aimed to increase consistency
and predictability (Schwarzer, 1991).
In more recent years, the judicial branch and politicians have become more interested in
increasing sentencing discretion in order to more effectively and fairly assess individual
circumstances (Shapiro, 1991). For example, the U.S. Supreme Court considered several
constitutional challenges brought against the Federal Sentencing Guidelines in a series of
decisions in the 1990s and early 2000s. In these cases, including in United States v. Booker
(2005), the U.S. Supreme Court effectively rendered the Federal Sentencing Guidelines advisory
as opposed to mandatory–thereby broadly reinstating judicial discretion (Klein, 2005).
Overall, sentencing guidelines have remained an important tool for setting common
standards for similar offenses and reducing subjectivity in sentencing outcomes. Today, many
U.S. judges at various court levels can consider a wide range of aggravating and mitigating
factors that allow them to weigh individual circumstances when deciding sentencing outcomes in
particular cases. However, this and other types of sentencing discretion can also result in biases
that may seep into judgments and lead to inconsistencies in the sentencing of similarly situated
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defendants between different judges and jurisdictions (Danziger et al., 2011; Thomaidou &
Berryessa, 2023).
Sentencing Disparities
The persistent presence of disparities in criminal sentencing is especially apparent when looking
at the rates of incarceration and severity of sentences between economically disadvantaged and
advantaged individuals, men and women, and different ethnic groups. We expand on potential
causes of such differences in the upcoming sections, but in relation to the sentencing standards
described above, we briefly outline issues with sentencing disparities here.
Generally, less than 10% of prisoners are women (Wagner & Rabuy, 2017) and women also
tend to receive less punitive sentences than men for similar crimes (Doerner & Demuth, 2012).
At the same time, Black Americans are imprisoned at a rate approximately 5 times higher than
White Americans (Nellis, 2021). While individuals who identify as White make up
approximately 60% and individuals who identify as Black account for about 13% of the U.S.
population, the prison population was roughly equally split at 38% White and 38% Black
individuals in 2019 (Sawyer & Wagner, 2022).
Important interrelated factors that can lead to sentencing disparities are the socioeconomic
background and the legal statuses of defendants (Widra, 2020). Notably, plea bargaining norms
motivate prosecutors to resolve as many cases as possible before trial in order to avoid time-
consuming and costly steps of prosecution; thus, prosecutors may exert disproportionate amounts
of pressure on defendants–that come from disadvantaged socioeconomic backgrounds and have
had prior negative experiences with the criminal justice system–and their legal representation
(Edkins & Redlich, 2019). Sentencing disparities and their causes, as discussed later, are thus
attributable to interconnected social, economic, psychological, and legal factors.
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II. RELEVANT PSYCHOLOGICAL THEORY AND PRINCIPLES
Humans are constantly making decisions about every aspect of life, which are driven by both
conscious and subconscious cognitive processes. Legal decision-makers are no exception. While
judges do rely on procedures and guidelines for making sentencing decisions, such decisions are
still, in many ways, inherently subjective as they depend on a range of psychological and other
factors. Further, in the U.S. system, legal judgments can set precedents that affect future
decisions–meaning that errors and biases can also later contribute to systemic deficiencies in
criminal sentencing outcomes.
In making a sentencing decision, a judge should consciously consider rules and standards in
order for punishments to be fair and just. Sentences ought to be proportional to the crime
committed–conceptualized as punishment that is equal and uniform for all similarly situated
defendants–and consider the harm that has been inflicted on society and victims (Demleitner et
al., 2022). However, even the fairest judges process such considerations through cognitive
mechanisms that largely operate on a subconscious level. In the past decades, psychological
research across various domains has identified several types of biases, mental shortcuts, and
errors that humans reliably exhibit in their thinking and decision-making (Kahneman, 2003;
Tversky & Kahneman, 1974). Some of these cognitive pitfalls, such as the brain’s tendency to
categorize, generalize, or take shortcuts when handling complex information, can lead to crucial
misjudgments in decision-making during sentencing.
Fairness and Utility
The authority to punish is based in valid purposes that are grounded in specific goals of
sentencing. For example, sentencing guidelines in the U.S. utilize the principle of proportionality
by advising judges to consider the seriousness of the offense and a defendant’s criminal history
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in their sentencing determinations. In theory, a formula or algorithm could be used to rank the
seriousness of offenses. For example, the U.S. federal sentencing guidelines have constructed a
decision table that can be consulted to determine a sentence based on a scale of offense levels
ranging from 1 (least) to 43 (most) severe crimes, and a criminal history point system. By cross-
tabulating, judges determine which part of the scale a defendant fits within and are advised to
sentence within this guideline range (Federal Sentencing Guidelines, 2018). Still, the U.S.
Sentencing Commission advises that “in determining the type of sentence to impose, the
sentencing judge should consider the nature and seriousness of the conduct, the statutory
purposes of sentencing, and the pertinent defendant characteristics” (18 U.S.C. § 3553(a)., 2018).
Thus, judges, even when following guidelines, are often inevitably reliant on their individual
rationality and potential subjectivity.
The principles of equality and uniformity–the ideas that all similarly situated defendants
ought to receive equal punishments–are also set forth by the U.S. Sentencing Commission
(O’Hear, 2006). Yet, which defendants are, in fact, similarly situated remains a subjective
judgment. Indeed, judges also consider individual circumstances and the needs of defendants
when making sentencing determinations (Cook & Hegtvedt, 1983). Related to the goals of
sentencing, decision-makers may, for example, appraise a defendant’s need and potential for
treatment or rehabilitation (Ulmer & Kramer, 1996). Such appraisals, however, are not
necessarily grounded in empirical evidence of treatability and may be substantially influenced by
views of a defendant’s background, personality, or affability (Pizzi et al., 2004).
Proportionality and equality are key elements of fairness in sentencing. Yet the goals of
sentencing also include considerations of harm inflicted on society and crime victims, and, thus,
punishment also incorporates such considerations. In recent years an emerging focus on
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restorative justice has led victims to play increasingly active roles during sentencing (Umbreit &
Armour, 2021), which can influence social psychological dynamics and, thereby, feelings or
views of equity in the courtroom (Ruback & Thompson, 2001). For example, equity theory
proposes that views of and decisions surrounding notions of justice are made by weighing social
relationships (e.g., between a victim and defendant) and the contributions and outcomes that each
receives in such relationships (Adams, 1963). Importantly, equity theory suggests that observers
or adjudicators of inequitable relationships (e.g., a judge sentencing a defendant who has
victimized another person) may experience psychological pressures to restore, in whatever way
possible, equity in these relationships in order to eliminate feelings of empathetic distress (Austin
et al., 1976; Hoffman, 2011). Thus, depending on the case, offense, and even if a victim is
present in court, such pressures could potentially affect how judges weigh equality in sentencing.
Cognitive Biases and Heuristics
Cognitive biases are systematic errors that predictably recur under particular circumstances; they
are the manifestations of heuristic judgments, with heuristics described as shortcuts in
information processing driven by fast-thinking subconscious systems (Kahneman, 2011).
Humans have evolved to use heuristics to efficiently navigate the world when faced with
uncertainty. As a result of these quick superficial judgments, for example, we fear flying in
airplanes but not driving in cars, even though the latter is far more likely to harm us (Tinnermann
et al., 2017). People constantly use subconscious mental shortcuts in daily life, with some biases
exhibited universally while others arise based on individual experiences and reference points.
In the handling of complex information presented in criminal cases, legal decision-makers
tread a tightrope by navigating their own cognitive biases, experiences, and intuitions (Guthrie et
al., 2001; Kahneman & Klein, 2009). In sentencing decision-making, fast-thinking cognitive
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systems are often predisposed to deliver quick responses that fit certain patterns–which risks the
potential for fast, biased answers to questions that often require complex and informed reasoning
(Gigerenzer & Selten, 2002; Kahneman, 2011).
Research has suggested that certain well-established biases and heuristics are directly
relevant to sentencing decision-making, including representativeness (simplified categorizations
of complex information), availability (relying on easily accessible knowledge to make swift
judgments), base-rate neglect (ignoring statistical or scientific evidence), anchoring effects
(decisions being attached to an initial exposure to numerical information) (Enough &
Mussweiler, 2001; Kahneman & Tversky, 1984; Tversky & Kahneman, 1973) and essentialism
(viewing certain people as being characterized by fixed attributes that constitute their identity)
(Berryessa, 2020; Xu et al., 2021). While much research has been devoted to understanding and
overcoming the human limitations of fast and efficient decision-making, biases and similar
psychological influences on judgment are particularly difficult to overcome–especially when
elements of expertise and experience come into play (Kahneman & Klein, 2009).
Representativeness. In sentencing, judges are tasked with a variety of probabilistic
questions: How likely is a particular individual to reoffend? What is the probability that
rehabilitation could correct their behavior? In assessing these probabilities, the
representativeness heuristic reduces a potentially complex statistical problem to simpler
questions of similarities and differences: How similar is this individual to those that reoffend? To
what degree is this defendant representative of the types of people that are successfully
rehabilitated? (Guthrie et al., 2001; Tversky & Kahneman, 1974). In this process, readily
observable characteristics of defendants, such as their gender, race, or criminal records, may be
assessed and weighed according to the degree to which they resemble a stereotype of an
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individual who is likely to reoffend or may be amenable to treatment. This heuristic approach
can lead to serious errors in judgment, as it omits several factors that influence probabilities
(Tversky & Kahneman, 1974). Representativeness ignores the validity of representative groups
that may be used to assess similarity; for example, if judges repeatedly encounter Black
defendants that reoffend, more so than encountering White defendants that reoffend, they may
form erroneous cognitive representations against which future defendants belonging to each
racial group are judged (Rachlinski et al., 2008).
Availability. When judging representativeness, but also in other types of decisions, our
memories are triggered in search of prior knowledge and information (Rehak et al., 2010).
Indeed, when judges decide whether an individual is likely to reoffend, they also draw from prior
knowledge and adjudicate, at least in part, based on their experiences (Maučec & Dothan, 2022;
Ulmer & Johnson, 2017). Notably, with the vast majority of U.S. judges being former
prosecutors, professional experiences can influence the ways that judges make decisions via
subconscious biases (Berryessa et al., 2023; Kronick, 2020). In such cases, examples in their
prior experiences that are available in memory–such as notable memories or examples of
defendants who recidivated–may guide their judgments. Evidence from cognitive science shows
that this availability heuristic leads to judgments that are statistically inaccurate (Tversky &
Kahneman, 1974), as memory is not an objective statistical or predictive tool (Schacter, 2012).
For example, the most memorable instances are likely to represent outliers and do not provide an
accurate forecast as to whether a particular individual will reoffend. Memory may also be
affected by one’s own emotional responses and familiarity–so much so that the probability of
recidivism can become inflated by faulty data (Schacter, 2012). For example, judges may be
more likely to remember cases involving defendants charged with sex offenses if someone in
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their family was sexually assaulted in the past. Judges with prosecutorial backgrounds may also
be prone to subconscious confirmations of prior beliefs and experiences that may be more partial
towards evidence of guilt over presumptions of innocence (Berryessa et al., 2023).
Base-rate neglect. Both representativeness and availability biases fail to take into account
base-rate information, which is the prevalence of a certain event or instance in the population.
Base-rate neglect is also a bias in itself; a notable example is random drug testing for people on
probation or parole using urine drug screen immunoassays (Saitman et al., 2014). For example, if
a certain type of testing kit never fails to accurately detect a drug, such as methamphetamine, but
is found to have a 10% false-positive rate (falsely concluding that a substance is
methamphetamine 10% of the time when it is actually not), this may lead a judge to conclude
that, given a positive test, the chances of a probation or parole violation are as high as 90%. Yet
this conclusion ignores the base-rate information that approximately 7 out of every 1,000 adults
use methamphetamine. Given this base-rate information, the real probability of a positive drug
test having actually detected methamphetamine when testing someone at random is less than 1%.
Indeed, psychological experiments across many contexts have shown that people follow this type
of erroneous intuitive reasoning when making judgments and ignore complex statistical rules
even if explicitly given information on the base-rate prevalence (Sanborn & Chater, 2016).
Anchoring. Anchoring bias refers to adjustments made to decisions in reference to the
information to which one is initially exposed. This is relevant for decision-making in the
courtroom for several reasons, with an important example being the justice system’s reliance on
prosecutors for sentencing recommendations (Guthrie et al., 2001). Different recommended
starting points can result in different reasoning and adjustments that will be biased towards that
initial recommended value (Enough & Mussweiler, 2001). For example, if a prosecutor
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recommends a 20-year sentence of imprisonment, a sentencing judge may become anchored to
this high value and the ultimate sentence is likely to be higher than if the initial value was set at 5
years. Similar anchoring biases have been also shown in many other types of legal decision-
making aside from sentencing (Enough & Mussweiler, 2001; Leibovitch, 2016).
Essentialism and Attribution Theory. In order to perceive, understand, and function
successfully in social environments, human brains categorize social stimuli based on numerous
attributes (Reinert et al., 2021). A prerequisite of such categorization is an underlying
assumption of stability and consistency across stimuli and time (Mcpherson, 2018). Inferences
about particular social stimuli are drawn by comparing perceptual inputs to existing social
groups, often subconsciously, because attempting to understand and navigate the world by
treating each stimulus as novel would be inefficient and potentially maladaptive (Mcpherson,
2018). While mental categories are malleable through a process of predictive coding and the
brain continuously updates mental models of the environment (Hillebrandt, 2014), underlying
assumptions that the social environment can and should be understood in terms of discrete,
stable, or cohesive characteristics can lead to biased and inaccurate conclusions.
Essentialist biases and attribution biases both ensue from the cognitive categorization of
stimuli (Mcpherson, 2018). Essentialism refers to the reasoning that categories are defined by
essential and deeply rooted features (Medin & Ortony, 1989). Essentialist thinking can create
biases by stereotyping individuals who have committed criminal offenses based on
characteristics that are erroneously viewed as natural, necessary, stable and unchangeable,
discrete, uniform, and necessarily informative (Xu et al., 2021). Linked to essentialist thinking,
attributions are made when specific behaviors exhibited by individuals are ascribed to their
stable, essential selves (Mcpherson, 2018). Attribution errors, similar to essentialism and other
19
biases, result in faulty determinations regarding the causes of events and behaviors. These types
of biases are particularly relevant to criminal sentencing. Assuming that criminal behavior is
attributable to an innate and stable cause that is consistent with an individual’s past behavior can
lead to erroneous conclusions that a person’s commission of one crime indicates an internal,
unchangeable criminal disposition–while ignoring important external factors on behavior, such
as situational contexts and the fact that behavior can change (Schmitt, 2015; Weiner, 1972).
The Halo Effect. As a group, superficially attractive individuals are likely to be judged more
favorably by others (Little et al., 2011). This is not only because of stereotyping, but also due to
a bias termed the halo effect (Nisbett & Wilson, 1977). Both humans and non-human species
exhibit a preference for those that appear healthy or physically attractive (Langlois et al., 2000;
Little et al., 2011), and such traits are intuitively generalized when making judgments about
others. While this tendency may have been evolutionarily useful when picking a mate, its
conclusions do not hold true in modern societies and this type of mental shortcut relies on
superficial characteristics that may lead to prejudice and disparities in sentencing. Several studies
have shown that the halo effect, as well as “negative halo” (i.e., negative perceptions of a
person’s external appearance), can bias guilt and punishment determinations (Ford et al., 2022;
McDonnell & King, 2018).
Intuitive Judgment, Expertise, and Feedback. Despite the biases that result from mental
shortcuts, the confidence that we have in our intuitive beliefs is usually justified; we allow
ourselves to navigate the world guided by impressions that may be largely subconscious.
Psychologists and behavioral economists have suggested that two main cognitive systems may
be engaged in decision-making. System 1 relies on heuristics for fast and efficient thinking, while
System 2 compromises speed for accuracy in more deliberate processes of decision-making
20
(Kahneman, 2011). Notably, research indicates that when individuals have expertise or extensive
experience in a particular subject, they are more likely to engage with fast-thinking systems and
trust intuitive judgments; this is especially important when faced with decision-making under
uncertain, complex, and time-constrained conditions (Kahneman & Klein, 2009). Indeed, judges
may sometimes trust their flawed intuitions and deliver biased judgments–not just despite but
perhaps especially–because of their training, expertise, and prior experiences.
When confronted with a problem that is relatively straightforward, experts in a specific area
are likely to recognize the situation and respond with accurate, intuitive solutions; for example,
firefighters are said to possess a “sixth sense for danger” because they have learned to recognize
and instinctively respond to nuanced sensory information, such as temperature or visual cues
(Klein et al., 2010). When faced with more complex questions, however, experts may still reply
with intuitive answers and, in doing so, address more simplified versions of complex questions
(Kahneman, 2011). Indeed, without conscious awareness of their reliance on intuitive thinking, a
judge could substitute complex questions on the probability of recidivism in the case of a young,
female defendant with a drug addiction, with a simpler related question: what I have I learned
about recidivism in prior cases that have involved young, female defendants with a drug
addiction? In this way, intuitive expertise also risks delivering biased answers when faced with
complex questions that likely require far more deliberate reasoning and consideration.
Moreover, judges reportedly believe that decision-making during sentencing is a complex
process that requires wisdom and insight drawn from years of experience–and that experience in
itself leads to better decision-making (Ruback & Wroblewski, 2001). Yet, biased decisions can
be self-perpetuating (i.e., using an answer that easily comes to mind will likely lead it to be more
easily recalled in the future), and experience in sentencing does not necessitate gaining expertise
21
in other related domains (Kahneman & Klein, 2009). Alas, even for judges, the errors of fast-
thinking are difficult to recognize because intuitive judgments inherently feel right, and a lack of
feedback, as well as overconfidence, can act as major hindrances in overcoming psychological
biases (Banaji & Greenwald, 2013; Berryessa et al., 2023; Kessler, 2010).
III. RESEARCH AND CASE LAW REVIEW
While the fairness and utility of mandatory sentencing guidelines has been contested, research
comparing sentencing outcomes before and after their implementation provide important insights
into factors that can influence sentencing. When looking at sentencing outcomes after the
Sentencing Reform Act of 1984 had been implemented, less variation was observed between
judges in their average sentence lengths under the mandatory guideline regime as compared to
before the passage of the Act (Anderson et al., 1999; United States Sentencing Commission,
2004). Yet, after the Supreme Court struck down the federal guidelines and rendered them
advisory, inter-judge disparities have increased significantly–with characteristics of individual
cases and judges often significantly influencing sentencing outcomes (Yang, 2014). This
suggests that sentencing decisions, at all levels, may be prone to noise. The presence of noise,
which is unwanted variability stemming from inconsistent cognitive biases and external
influences, may suggest that decisions are impacted by arbitrary or irrelevant information, and
this can make systems unreliable, disparate, and unfair (Kahneman et al., 2021).
In recent years, psychological and criminological research has shown that decision-making
in sentencing is often affected by an array of arbitrary, external factors–from the time of day to a
defendant’s appearance. To gain a fuller picture of the factors that can influence sentencing,
researchers sometimes conduct studies with judges, such as surveying or interviewing them
about their opinions and attitudes towards particular groups of people and offenses, or rely on
22
examining case law and patterns of existing sentencing decisions and outcomes. These growing
bodies of work are beginning to shed light on the key factors that commonly affect sentencing.
The Seriousness of the Crime and Criminal History
Based on the federal sentencing guidelines, the seriousness of an offense and the criminal history
of a defendant are the two main legal factors that should be considered during sentencing.
Research indicates that judges tend to adhere to this advice by actively consulting sentencing
tables and assigning a base offense level to a case during their determinations (Newman, 2018).
Most states have also enacted their own guidelines and sentencing grids that then bear on
sentencing determinations (Mitchell, 2017). Overall, adopting sentencing guidelines that prompt
judges to primarily consider offense severity and criminal history in their decision-making
process has been shown to reduce disparities and, in some contexts, reduce sentencing severity
more generally across cases (Edwards et al., 2019).
Further, as set forth in different sets of guidelines, studies of different bodies of case law
have also indicated that the overall length of rendered prison terms appears to increase somewhat
fairly proportionally to the seriousness of an offense and a defendant’s criminal history (Butcher
et al., 2021; Thomaidou & Berryessa, 2023). However, while judges do rely on these legal
factors as a starting point for their sentencing determinations, they exercise significantly more
discretion when sentencing more serious, compared to less serious, crimes (Cassidy & Rydberg,
2019) and inter-judge variations in sentencing severity for serious crimes often reflect
considerations of extralegal aggravating factors (Cassidy & Rydberg, 2019; Dobbie et al., 2018).
At the same time, downward departures from the guidelines have been more commonly observed
for non-violent crimes, such as in white-collar cases (Hewitt, 2016).
Plea Bargains and Bail Statuses
23
Another set of interrelated factors that can influence sentencing relates to the nature of the plea
entered by a defendant and whether or not a person has been released on bail. Pleading guilty,
whether to the offense charged or to a lesser crime, is not formally considered as a mitigating
factor to sentencing (National Advisory Commission on Criminal Justice Standards and Goals,
1973). Nevertheless, at least theoretically, a guilty plea demonstrates the taking of responsibility
for one’s action, and the federal sentencing guidelines explicitly state that, “if the defendant
clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2
levels” (U.S. Sentencing Commission Manual § 3e1.1.(a) 2018). Indeed, research indicates that
judges may believe that a defendant found guilty at the end of a trial–as compared to a defendant
who pleads guilty in the context of a plea bargain–has imposed a burden onto the criminal justice
system and taxpayers, and thus, should be punished accordingly (Zotolli et al., 2016). Many
judges view plea bargains as agreements in which a guilty plea permits a more lenient sentence
(Edkins & Redlich, 2019; Redlich et al., 2017). Analyses of case law also confirm, in practice,
that guilty pleas can act as mitigating to sentencing outcomes, while judges’ decisions are also
affected by whether defendants explicitly confess to their crimes (Redlich et al., 2017).
Further, the nature of a defendant’s plea and later sentencing outcomes can be affected by
whether an individual had been released on bail prior to the proceedings. Research indicates–
even when statistically controlling for the fact that more severe crimes may increase the
likelihood of bail being denied prior to trial or sentencing proceedings–that pre-trial release
significantly reduces the probability of being found guilty (primarily because those detained
prior to trial can face increased pressures to plead guilty and agree to plea bargain stipulations)
and later increases the probability for more lenient sentencing outcomes (Dobbie et al., 2018;
Spohn, 2005). At the same time, being detained in jail can also unfavorably impact the
24
appearance and later perceptions of defendants during trial (Areej, 2022; Olderman, 2020).
Defendants’ Gender
A defendant’s gender represents one of the more influential socio-demographic characteristics
for sentencing. Women generally receive more lenient sentences than men for similar crimes, in
terms of both the type of sentence and the length of incarceration (Butcher et al., 2017; Doerner
& Demuth, 2012). When controlling for the severity of the offense and criminal histories, this
gender disparity appears to be rooted in extralegal factors. For example, women tend to have
stronger ties to the community or be the primary guardians of children, as well as score more
favorably on risk assessment tools and have lower recidivism rates; female defendants are also
more likely to plead guilty and accept responsibility for their actions, and they may be more
likely to commit crimes as a result of having been victimized themselves (Etienne, 2010; Miller,
2015). Overall, factors such as these may be viewed as mitigating and aligned with sentencing
reductions that are based on several goals of sentencing.
Still, sentencing outcomes may also be affected by superficial characteristics, as discussed
below, and gender stereotypes. For example, men are more likely than women to be seen as
leaders and leadership roles in offending are commonly viewed as aggravating factors for
sentencing. While research on exact causes of a “gender gap” in sentencing remain inconclusive,
it is notable that female judges, who might be less likely to endorse stereotypes about women,
are also less lenient in their sentencing of women as compared to male judges (Philippe, 2020).
Defendants’ Age
The age of defendants also influences sentencing determinations. Two landmark U.S. Supreme
Court cases struck down both capital punishment (Roper v. Simmons, 2005) and mandatory life
sentences without the possibility for parole (Miller v. Alabama, 2012) for juvenile defendants. In
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Roper v. Simmons, the Supreme Court ruled that executing individuals for offenses committed
before the age of 18 is unconstitutional, as it represents cruel and unusual punishment. In Miller
v. Alabama, the Court stated that children should not be denied the possibility of parole because
they are neither legally nor developmentally considered the same as adults. In practice, states
continue to sentence teens to life sentences when deemed appropriate and such decisions are
commonly affirmed by appellate courts (e.g., Com.v. J. M. Taliaferro, 2022; Cosby v. State,
2022). A majority of states, however, have banned life sentences for youth offenders through the
implementation of various statutory remedies (Rovner, 2023).
Defendants between the ages of 25 and 50 tend to receive the harshest sentences
(Steffensmeier et al., 2017). Age effects are explained partly by legal factors (i.e., younger
defendants often have shorter criminal records) but are also due to extralegal factors, such as
older defendants often having stronger community ties than younger defendants (Steffensmeier
et al., 2017). Importantly, research also shows that age interacts with other factors, such as race.
For example, younger Black defendants often receive the harshest sentences of any demographic
group, while Black and Hispanic women commonly receive harsher sentences than young White
men for similar offenses (Cassidy & Rydberg, 2019).
Defendants’ Race
A defendant’s race is consistently shown to heavily impact sentencing determinations, even
when controlling for other relevant legal and extralegal factors–with non-White populations
having higher conviction rates and receiving harsher punishments (Cassidy & Rydberg, 2019;
Hauser & Peck, 2016; Kovera, 2019). Research indicates that, in the last two decades, there has
been a modest decline in the racial disparities observed across sentencing outcomes; this has
been thought to be largely due to changes in drug sentencing laws (King & Light, 2019). Indeed,
26
at least in part, racial disparities in sentencing outcomes have been largely driven by legal
factors, such as determinant sentencing laws and sentencing guidelines that heavily weigh a
defendant’s criminal history in punishment determinations (Franklin & Henry, 2020; Omori &
Petersen, 2020). Still, racial stereotypes cannot be discounted as a cause of and remain a key
contributor to sentencing disparities (Cassidy & Rydberg, 2019; Kovera, 2019; Ulmer, 1997).
In the 1980s, growing concerns over racial disparities in sentencing led to the U.S. Supreme
Court decision, McCleskey v. Kemp (1987), followed by the implementation of the Federal
Sentencing Guidelines (Etienne, 2010). McCleskey, who had been sentenced to death, appealed
his sentence based on statistical evidence published by professor David C. Baldus that showed
widespread racial discrimination in capital sentencing decisions (Baldus et al., 1983; McCleskey
v. Kemp, 1987). However, McCleskey v. Kemp (1987) also held that studies suggesting racial
disparities in capital punishment do not prove that the practice violates the Eighth Amendment as
a cruel and unusual punishment.
Defendants’ Physical Appearance
Research also attributes disparities in sentencing to the physical appearance of defendants.
Having Afrocentric features–such as dark skin, a wide nose, or fuller lips–have been associated
with harsher sentencing outcomes for both Black and White defendants (Blair et al., 2005).
Subconscious bias and preference for softer or more familiar physical features, as compared to
characteristics that are perceived as rougher or belonging to members of an outgroup, may
positively impact sentencing outcomes (Henry, 2020; Sutherland et al., 2020). For example,
women that are perceived as violating expectations of “normative femininity” in their physical
appearance have been found to be sentenced more harshly (McLaughlin & Shannon, 2022).
27
Studies also show that Black defendants tend to be rated as more threatening in appearance than
White defendants and their sentencing is influenced by gradations in skin tone (Monk, 2019).
Judges’ assessments of a defendant’s external appearance can also perpetuate sentencing
disparities. For example, defendants held in pre-trial detention, versus those released on bail,
have been found to receive more severe sentences due to differences in their clothing and kempt
physical appearance (Wald, 1964). Educational attainment and personality, inferred by external
characteristics, have also been shown to influence sentencing outcomes (Jaeger et al., 2020).
Defendants’ Mental Health
A defendant’s diagnosis with a mental disorder can also affect sentencing outcomes. In 2002, the
U.S. Supreme Court found that sentencing a person with intellectual disability (an IQ below 70)
to death is unconstitutional and constitutes cruel and unusual punishment (Atkins v. Virginia,
2002). Yet, the Court has only set that standard for cases in which an intellectual disability
renders a defendant unable to comprehend legal proceedings or the State’s rationale for
punishment (Panetti v. Quarterman, 2007). In cases involving defendants with mental disorders
that do not affect legal standards related to mental capacity, the Court has declined to provide
similar safeguards (see e.g., Madison v. Alabama, 2019).
Further, a defendant’s mental disorder may also act as a “double-edged sword” for
sentencing–meaning, based on the discretion exercised and determinations made by individual
judges, a defendant’s psychiatric diagnosis could lead to either to the mitigation or aggravation
of one’s sentencing outcomes (Aspinwall et al., 2012; Cheung & Heine, 2015; Thomaidou &
Berryessa, 2023). Studies have shown that defendants with more severe diagnoses, such as
psychotic disorders, are significantly more likely to receive not guilty by reason of insanity
verdicts (van Es et al., 2020). Yet defendants with other less severe diagnoses, such as
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paraphilias, have far more variation in their verdicts and sentencing outcomes–with individual
judges and courts showing disparate downward or upward departures from sentencing guidelines
across similar cases involving similar diagnoses (Cole et al., 2021). To date, reasons that underlie
sentencing disparities in cases involving defendants with psychiatric illnesses have not been fully
explicated by existing empirical work; however, at least in part, misunderstandings of,
stereotypical thinking, and essentialist biases toward those with mental disorders appear to bear
on such disparities (Batastini et al., 2018; Berryessa, 2018).
Judges’ Characteristics
Overall, research shows that judges’ characteristics may account for some disparities observed in
sentencing outcomes (Guthrie et al., 2001; Rachlinski et al., 2008). Socio-demographic and other
characteristics of judges can also meaningfully affect sentencing. For example, according to
studies of case law, judges appear to be more punitive when they are tired or hungry (Danziger et
al., 2011), when their favorite sports team has lost a game in the days prior to deliberations (Eren
& Mocan, 2018), or even when outdoor temperatures are high (Heyes & Saberian, 2019).
Empirical work suggests that younger female judges are more punitive than male judges in the
sentencing of violent and serious crimes (Hoffman et al., 2020). Training and prior professional
experiences can also create noise in sentencing decision-making. For example, judges that are
former public defenders are often more lenient in sentencing (Harris & Sen, 2022).While there is
some evidence that judges who identify as Black may be less punitive than judges who identify
as White, especially for Black defendants (Chew & Kelley, 2009; Kastellec, 2021), other studies
have not found significant differences in the sentencing outcomes for judges belonging to
different racial groups (Farhang, 2004; Spohn, 1990).
29
A judge’s political orientation has been more consistently shown to impact sentencing
determinations, particularly for non-White defendants. More liberal judges (or those appointed in
more Democratic jurisdictions) have been found to sentence defendants somewhat more
leniently as compared to their more conservative colleagues (Huang et al., 1996). Notably, case
law research indicates that Republican-appointed judges may show stronger racial and gender
biases, compared to those appointed by Democrats (Cohen & Yang, 2019; Durante, 2021).
Social Pressures and Courtroom Dynamics
As electability is a concern for most U.S. judges, it is possible that they may also be influenced
the views of their constituents and the pressures of public opinion (Drakulich, 2022). In a key
case relating to judicial election campaigns, the U.S. Supreme Court ruled that candidates
running for judgeships are free to state their opinions on disputed political or legal issues,
including sentencing issues and capital punishment (Republican Party of Minnesota v. White,
2002). This decision has been contested by legal scholars, as it is thought to compromise
impartiality and make judges more political, acquiescent, and susceptible to public attitudes and
sudden shifts in political pressures that should not, in principle, affect values and goals on the
bench. Indeed, because many judicial seats depend on a voter’s preferences, a jurisdiction’s
predominate political ideology, to some extent, may also influence its criminal justice system’s
responses to offending (Cheek & Champagne, 2003; DeLuca & Yanos, 2016). Research
indicates that jurisdictions with predominantly conservative political ideologies generally impose
harsher sentences than liberal ones (Helms, 2009; Huang et al., 1996), while racial disparities in
sentencing may also be more prominent in jurisdictions with conservative political ideologies
(Durante, 2021; Kovera, 2019; Nellis, 2021).
30
Pressures and dynamics within the courtroom also affect sentencing decision-making. High
caseloads and time pressures influence judges–with research indicating that judges are more
likely to grant alternative and less punitive sentences in courts with reduced caseloads (Engel &
Weinshall, 2020; Metz et al., 2019). At the same time, the presence of victims at sentencing also
can exert pressure on judges during sentencing. Two U.S. Supreme Court cases (Kenna v. U.S.
Dist. Court for C.D.Cal., 2006; Payne v. Tennessee, 1991) affirmed the rights of victims to be
heard during sentencing and victim impact statements are now permitted in all states (Alexander
& Lord, 1994). This may, to some extent, help to restore the rights of victims, but it could also
potentially pressure judges to impose more severe sentences due to extralegal factors. The
Supreme Court previously asserted that severe punishments, such as the death penalty, should
not bear on the characteristics of victims (Kennedy v. Louisiana, 2008). Still, equity theory
suggests that courtroom dynamics, such as the presence of victims, can exert psychological
pressures on judges to restore equity through more punitive sentencing (Austin et al., 1976;
Hoffman, 2011). Among many examples, a recent case affirmed by the Virginia Court of Appels
upheld a defendant’s sentence to 40 years in prison, even though guidelines recommended a
sentence of 12 to 20 years; at least in part, the trial court’s reasoning for this departure from the
guidelines was the “victim impact statement [being] compelling and [the victim’s] fear of his
release and violence [being] valid(James Davis v. Commonwealth Of Virginia, 2022).
Algorithmic Decision-making
As a range of extralegal factors, biases, and heuristics, such as the ones we have reviewed here,
can affect sentencing outcomes (Berryessa, 2018; Cohen & Yang, 2019; Leibovitch, 2016),
decision-making algorithms (also known as mechanical decision-making) have been more
recently considered in relation to, and in some cases have begun to be implemented at various
31
stages of, the criminal justice process, including at sentencing (McKay, 2020). Machine learning
algorithms are able to perform complex prediction tasks, such as assessing which defendants are
likely to skip bail or at a high risk of reoffending. This type of mechanical approach has been
shown to reliably outperform human judgment, but it has also faced an array of criticisms.
When considering information, mechanical decision-making is said to be free of noise and
reduce variability in outcomes; indeed, research has shown that decision-making algorithms can
be far more accurate than human judgments (Kleinberg et al., 2017). Sunstein (2021) argues that
algorithms can compute a large number of relevant factors–including complex interactions
between factors that often go undetected by human minds–exclude extra-legal factors, and
deliver judgments that are noise-free. Yet, since the training of such predictive models depends
on existing data, mechanical decision-making is not necessarily free of bias (Ryberg & Roberts,
2022). For example, using race as a predictor in a model would likely create a decision-making
algorithm that is overtly biased and would result in discriminatory judgments based on race; even
though decision-making algorithms for bail or sentencing determinations do not include race,
they may use factors that are highly corelated with race, leading to biased outcomes (Ryberg &
Roberts, 2022). At the same time, source data used to train models can also perpetuate
discrimination. For example, algorithms could encode discrimination into sentencing algorithms
by coding for and reflecting results of past sentencing determinations. Indeed, one study
examined an algorithmic risk assessment tool used widely across the U.S. to make sentencing
decisions and found that decisions made with this tool were characterized by low validity and
racial bias (Larson et al., 2016).
Detecting and correcting programmatic errors in mechanical decision-making tools are
crucial and the transparency of algorithms allows for such corrections (Kleinberg et al., 2018).
32
People may be inclined to stop trusting algorithms as soon as they notice that machines can make
mistakes. Indeed, concerns have been raised about a particular type of machine learning, called
deep learning, because the factors that affect models’ outputs are inherently obscure and it is
often impossible to know what algorithms are taking into account; yet correcting bias in shallow
learning algorithms, in which the factors that affect models’ outputs are known, may be a much
more straightforward process as compared to correcting errors in human judgment that are often
driven by subconscious and undetectable factors (Kleinberg et al., 2018). Using algorithms that
are demonstrably more transparent than human decision-making may, thus, be a constructive
step towards minimizing bias in sentencing. However, it is important to note that many people
appear more comfortable with the idea that humans, as compared to machines, can make
mistakes; therefore, in high-stakes scenarios like criminal sentencing contexts, it is possible that
we will not fully embrace and adopt mechanical decision-making until near perfect predictive
accuracy can be achieved (Kahneman et al., 2021).
IV. SOCIOCULTURAL IDENTITIES AND SYSTEMIC INEQUITIES
Much of what has been discussed in this chapter thus far highlights the existence of bias in
human judgment. Importantly, there also exist pervasive biases within systems, and systemic
bias also meaningfully influences who becomes involved in crime and the justice system’s
responses to their offending. Individuals with different social and cultural identities have vastly
different experiences in the criminal justice system, especially those disadvantaged by long
histories of social, economic, and health-related inequalities (Fazel et al., 2009, 2016; Freeman,
2003; Reskin, 2012). While it is not always easy to discern what types of bias may drive
decision-making and systems as a whole, disparities for these populations are well-established
and, here, we discuss known determinants to systemic biases in their sentencing outcomes.
33
Social and Economic Determinants
Even before becoming involved in the criminal justice system, individuals’ socio-economic
backgrounds can bear on their later outcomes–in some ways like a “life lottery”–especially if
they are born into poverty or into social disadvantage (Berryessa, 2022b; Western et al., 2004).
According to one report based on tax data, boys raised in families at the bottom of the income
distribution are 20 times more likely to go to prison than boys raised at the top of the income
distribution; further, neighborhoods with the highest child poverty rates have incarceration rates
that are more than double the national average and tend to have higher unemployment rates
(Looney & Turner, 2018). Concurrently, research indicates that neighborhood environments
have a causal impact on individuals’ subsequent life outcomes and later criminal justice
involvement (Kirk, 2022).
During sentencing in particular, economic disadvantage can continue to place individuals
with socially disadvantaged backgrounds in unfavorable positions. As already discussed, cash
bail systems can later negatively affect sentencing outcomes for those unable to afford to post
bail (U.S. Commission on Civil Rights, 2022). Being unemployed or homeless can also serve as
aggravating factors in sentencing, while sentences of fees and fines, that state systems often rely
on for revenue, disproportionally punish those that are financially unstable (Diamond et al.,
2022). In turn, the inability to afford bail, fees, or fines leads to the later incarceration of
individuals who are unable to pay (Bing et al., 2022; Western et al., 2004). This repeating cycle
has been termed the revolving prison door–with formerly incarcerated people coming from and
returning to socio-economic disadvantages as well as facing great difficulties in finding
employment and paying existing monetary sanctions–that puts them at high risk of further
contact with the criminal justice system (Freeman, 2003; Padfield & Maruna, 2006).
34
Racial and Ethnic Determinants
There is a large body of literature that suggests that people of color are significantly more likely
to go to prison than White Americans, and neighborhoods that consistently have the highest
incarceration rates are found to be predominately non-White (Looney & Turner, 2018). These
trends are partially related to a long history of systemic racial and ethnic inequalities in income
and educational attainment in the U.S., with one prominent sociologist describing racial
disparities as an integrated system of inequalities across multiple domains including housing,
employment, education, and justice (Reskin, 2012). While the law and decision-making
processes within it may be prone to racial bias–whether implicit or conscious (Arnold et al.,
2017; Pizzi et al., 2004; Rice et al., 2019)–systems theories suggest that the range of socio-
economic inequalities experienced by U.S. minority populations across the past four centuries, as
well as deeply enshrined societal and legal standards that disproportionally favor White and
wealthy Americans, are largely responsible for sentencing disparities and high levels of
discrimination within the criminal justice system as a whole (Reskin, 2012). Research evidence
too suggests that inequalities in sentencing are, at least partly, also institutionalized through legal
factors, such as the weight of prior criminal records or the negative effects of pretrial detention
on later sentencing outcomes (Omori & Petersen, 2020).
There are a host of examples regarding how systemic inequalities across multiple domains
may lead to racial and ethnic disparities in criminal justice outcomes. For example,
predominantly Black or Hispanic neighborhoods often have schools that receive less funding and
have less educational or athletic resources than White neighborhoods–which may later affect the
chances of children attending those schools of receiving further education and prospering in the
35
labor market (Reskin, 2012). In the same way, this can also influence their potential risk of later
becoming involved in the criminal justice system and incarceration (Reardon et al., 2009).
Health Determinants
Health determinants, including mental and physical health, are also a stepping stone between
socioeconomic disadvantages and sentencing disparities in the criminal justice system (Fazel et
al., 2009; 2016). Lower income and social inequalities are associated with a higher risk for major
mental health issues, which then correspondingly increase the likelihood of contact with the
criminal justice system and incarceration (Jácome, 2021). Further, the most common sentencing
options utilized by courts can extend and exacerbate the mental health problems of defendants
with psychiatric disorders, as well as increase their chances of recidivism and reentering the
system (Perlin & Gould, 1995; Sims, 2009). Instead, access to substance abuse treatment and
other mental health services are shown to reduce the offending of those with mental disorders
(Bondurant et al., 2016; Jácome, 2021). However, these services are only rarely available or
employed in sentencing, and instead, sentences such as terms of incarceration and probation can
be either harmful for defendants with mental disorders or difficult to follow (Johnston, 2013).
For example, following or adhering to even simple terms of probation can be difficult for many
defendants with mental disorders, who may be unable to remember court dates, appointments for
drug tests, or hold down a job–leading to violations that send them back to court or prison
(Berryessa, 2017).
Physical health may also have an effect on criminal justice involvement and punishment.
Health conditions are linked to higher unemployment rates and socioeconomic difficulties and,
in turn, can lead individuals to come in increased contact with the justice system, leave them
unable to post bail or afford quality legal representation, and therefore, increase their chances of
36
falling prey to the cycle of the revolving prison door (Vaughn et al., 2014) and facing difficulties
during reentry (Pękala-Wojciechowska et al., 2021). At the same time, experiencing physical
health problems can also lead to disproportionate pains of imprisonment during incarceration, as
prisons are often unable to meet the healthcare needs of such individuals (de Vel-Palumbo &
Berryessa, 2022; Pękala-Wojciechowska et al., 2021; Semenza & Grosholz, 2019).
V. PRACTICE AND POLICY ISSUES
In the aftermath of the COVID-19 pandemic, the number of incarcerated people in the U.S.
dropped to the lowest levels in 20 years (Gramlich, 2021). While the incarceration rate still
surpasses any other country in the world, this is perhaps the most promising time in which policy
and sentencing practices can evolve. A growing body of evidence indicates that long sentences
do not reduce recidivism, do not enhance public safety, and are not effective methods for
controlling or responding to crime (Austin et al., 2017; Roeder et al., 2015). Instead, enabling
individuals to address the underlying reasons for their offending and improve their life
circumstances may be more successful and long-term strategies. Sentencing disparities and the
overrepresentation of specific groups, as described above, with regard to long-term sentences and
in incarcerated settings have not changed significantly in recent decades (King & Light, 2019;
Sawyer & Wagner, 2022). Still, technological and scientific advancements are currently paving
the way towards potentially less biased and more effective decision-making in sentencing.
Increasing Non-custodial Sentences
Incarceration, as a criminal sentence, is most often ineffective in reducing crime and recidivism
for several reasons. Incarceration removes individuals from supportive community structures,
breaks family ties, diminishes future opportunities for employment, and exacerbates, and even
gives rise, to mental health issues (Fazel et al., 2016; Freeman, 2003; Roeder et al., 2015). Some
37
studies indicate that releasing defendants into the community on terms of probation may be more
effective in preventing recidivism (Harding et al., 2017). At the same time, technological
advancements have made it easier than ever to monitor defendants while they are in the
community (Bales & Piquero, 2012). For those considered dangerous or in need of treatment,
some forms of community- or healthcare-based rehabilitation programs have also been shown to
be effective in reducing future offending (Farrington et al., 2003; Tong & Farrington, 2006).
Rehabilitation programs can vary in their effectiveness and have received ample scrutiny over
the years (Lösel, 2012). Even so, the science of correcting criminal behavior has evolved and
improved in recent decades–with many programs outperforming more traditional modes of
punishments across many violent and non-violent crimes with regards to reducing recidivism
(Andrews & Bonta, 2006; Gueta et al., 2022; Schmucker & Lösel, 2008).
Despite the positive developments in rehabilitative programs, policymakers still appear slow
to implement alternative or diversionary options for sentencing (Corrigan & Watson, 2003).
Additional education in and access to evidence-based science on what works to affect recidivism
may help to assist policymakers in both evaluating and implementing effective rehabilitation
programs, as well as reducing crime, enhancing public safety, and mitigating issues associated
with mass incarceration. For example, some European countries such as Latvia and Italy have
increasingly used community sanctions and forms of rehabilitation as alternatives to
incarceration (Tabar et al., 2016). Others, such as the Netherlands, have employed experts that
can assist legal decision-makers in understanding and applying scientific evidence and data
during trials and sentencing (de Kogel & Westgeest, 2015; Martufi & Bernardi, 2016).
Reducing Incarceration Lengths
38
Research has also shown in recent years that lengthier periods of incarceration–in the form of
long-term sentences as compared to shorter sentences of incarceration or other modes of
punishment–do not curb recidivism or improve public safety in the ways originally imagined by
“tough on crime” proponents (Austin et al., 2017; Roeder et al., 2015). Longer periods of
imprisonment, instead, come with mounting social and fiscal costs (Fondacaro & O’Toole, 2015;
Mauer, 2018). This can be attributed to the negative effects that prison has on incarcerated
people, but longer periods of imprisonment also have cascading effects on the families and
children of incarcerated parents (Geller et al., 2009). Importantly, given known racial disparities
in sentencing, long custodial sentences can perpetuate systemic inequalities by affecting future
generations in communities of color (Mauer, 2018). Imprisoning individuals for long periods of
time also imposes a vast and often unjustified financial burden on taxpayers (Austin et al., 2017).
Despite ample empirical evidence and advancements in understanding what works in
reducing crime and enhancing public safety, the federal sentencing guidelines, as well as most
state guidelines, have not been updated in decades (Roeder et al., 2015). Many state systems still
adhere to a range of determinant sentencing policies, including Truth In Sentencing and Three
Strikes laws, that sometimes put people away for long periods of time for non-violent offenses
(Mauer, 2018; Roeder et al., 2015). Thus, sentencing commissions, future amendments to both
federal and state guidelines, and state legislatures should consider this mounting evidence sand
look to reforms that reduce the social and fiscal costs of long-term incarceration. In fact,
members of the public have been found to support mechanisms that alleviate long-term sentences
for a range of violent and non-violent offenses, particularly if they save taxpayer money and the
financial burdens of incarceration (Berryessa, 2022a).
39
One initiative that has helped to reduce incarceration lengths in the past decade is the
implementation of second look sentencing. This process enables judges to take a second look at
the sentences served by offenders–considering their rehabilitation and growth while in prison–
and potentially reassess the severity of their sentences or release them from prison (Hannan et
al., 2023). This effort is shown to have the support of the legal community and even the public
(Berryessa, 2022a). Overall, it is a valuable example of a type of policy reform that can
effectively reduce incarceration lengths, especially for drug offenses or other non-violent crimes
for which long, determinant sentences have been historically used, without compromising public
safety and prioritizes the release of individuals that no longer pose a danger to society
(Berryessa, 2021a a, 2021b b; Hannan et al., 2023).
Improving Risk Assessments and Algorithmic Decision-Making
In recent decades, various forms of risk assessments have become commonly used tools that
calculate the risk and probabilities of reoffending at several stages of the criminal process,
including at sentencing (Van Ginneken, 2019). Existing risk assessment instruments have often
been criticized as being inconsistent–having only modest short- and long-term predictive ability–
and inviting and allowing for subjectivity when assessing risk (Andrews & Bonta, 2006). While
more recent risk assessment tools that stem from the risk-need-responsivity model have
addressed some of these concerns, criticisms persist that these tools may continue to reflect
systemic biases and lead to discrimination in sentencing (Van Ginneken, 2019). Thus, it is
crucial to implement policies that thoroughly examine the validity and predictive accuracy of
existing risk assessment tools and also continue to improve their accuracy (Metz et al., 2019).
At the same time, studies show that providing judges with risk assessment tools can help
decrease racial disparities in sentencing or bail decisions (Arnold et al., 2017; Kleinberg et al.,
40
2017). Yet, while mechanical forecasting is considered a promising way to reduce unwanted
disparities in sentencing, the task of eliminating bias from such risk assessment instruments is as
important as it is difficult. Indeed, as noted above, current machine learning algorithms are
trained on existing data–including on factors that could be linked to economic status, ethnicity,
race, and gender–from a system that is entrenched in inequalities (Ryberg & Roberts, 2022).
Still, as noted above, it may be more straightforward and we may be more likely to expect
improvements in the validity of machine prediction as compared to eliminating human biases
(Kleinberg et al., 2018). If policymakers invest in the development, iteration, and evidence-
driven applications of machine learning, the use of such tools may hold great promise for
reducing disparities in sentencing outcomes (Arnold et al., 2017; Kahneman et al., 2021;
Kleinberg et al., 2017; Sunstein, 2021).
Reducing Bias and Noise
Sentencing relies on human judgment under conditions of uncertainty and driven by cognitive
processes that have evolved for efficiency at the cost of accuracy (Shah & Oppenheimer, 2008).
The long history of the U.S. criminal justice system has grappled with this issue and, at times,
has attempted to balance judicial discretion with constraints on judicial behavior. Indeed,
following rules, rather than relying on intuitive reasoning, has been shown to reduce subjectivity
and bias, including in judges (Kahneman & Klein, 2009; Kleinberg et al., 2017; Sunstein, 2021).
As cognitive biases are ingrained in human thinking and decision-making, it is essential for
policy and practice standards to consider the flaws of human judgment when working towards
improving sentencing outcomes.
For example, in addressing racial inequalities in criminal justice, studies have shown that
presenting statistics to individuals with no training in statistics about sentencing disparities
41
between White and non-White defendants can perpetuate stereotypes and false beliefs about the
likelihood of offending or criminality of White and Non-White populations (Hetey & Eberhardt,
2018). Thus, providing adequate framing and context to data (Hetey & Eberhardt, 2018), as well
as engaging decision-makers in active interventions for reducing implicit racial bias (Lai et al.,
2014), may be promising strategies for reducing implicit racial bias in sentencing. Interventions
that utilize associative learning by presenting counter-stereotypical associations are especially
shown to reduce different types of bias, including negative racial prejudice, especially when
associations are presented in an immersive manner (Foroni & Mayr, 2005; Lai et al., 2014). For
example, creating programs in which with decision-makers can be exposed to instances of Non-
White individuals engaging in positive behaviors, helping others, or being successfully
rehabilitated might help counter the stereotypes that some judge may hold.
At the same time, studies have shown that people can successfully reduce errors in judgment
and the exhibition of particular cognitive biases, such as confirmation bias and anchoring, via
different trainings and strategies (Morewedge et al., 2015; Rhodes et al., 2017). Such strategies
could be adapted for judges and used to aid them in hindering the exhibition of particular
heuristics and biases in their sentencing practices (Sellier et al., 2019). It could be beneficial to
integrate them also into judicial trainings or professional development programs, so that judges
can engage in bias-eliciting judgments and receive active feedback on how to recognize and
avoid particular types of bias in the future.
Many biases that can bear on sentencing outcomes are not necessarily uniform or predictable
across all judges or courts; at the same time though, even judges can have a “bias blind spot” and
may be unable to accurately appraise their own cognitive biases (Spamann & Klöhn, 2016). This
can result in system noise: unwanted variability in sentencing practices between different judges
42
that are driven by distinct influences on decision-making. Thus, it is important to consider
strategies that can deal with blind sports and nudge judges into making better decisions. For
example, judges can be prompted to opt for less punitive sentences when explicitly informed on
the financial costs and diminishing returns of incarceration (Aharoni et al., 2022). A practice of
explicitly listing all aggravating and mitigating factors to be considered during sentencing may
also help combat biases in judgments, such as availability biases or heuristics that rely on flawed
memory systems (Marder & Pina-Sánchez, 2020). Moreover, trainings used by other industries,
such as prejudice habit-breaking that is commonly used by large corporations, can be adapted
for judges and used to teach them about the prevalence of bias in judgments and how it can
influence decision-making more generally (Devine et al., 2012).
Improving Scientific Comprehension
Kahneman et al. (2021) suggest that a better understanding of the psychological and statistical
processes commonly involved in evidence, and more generally during the sentencing process,
could aid judges in making better predictions and decisions. A growing body of research
indicates that decision-making can be improved by augmenting probabilistic thinking (Tetlock et
al., 2014). This suggests that policy makers should direct resources towards comprehensive
trainings for judges on statistics, which may help them to foster more effective assessments of
risk and a better understanding of factors that bear on and are relevant to sentencing decisions.
At the same time, trainings should enhance judges’ scientific knowledge on the nature and
amenability of human behavior and its relevance for sentencing. Scientific understandings of the
causes of and potential solutions to offending, including evidence-based interventions and
policies, have continued to develop alongside the amount of scientific evidence entering courts;
even so, courts and judges are still not well-equipped to evaluate the quality or relevance of
43
evidence and effectively apply this information in court (Baron & Sullivan, 2018; Chorn &
Kovera, 2019). Such trainings are more common in the last several years, including some
programs that have been implemented by organizations such as The National Courts And
Sciences Institute, and can provide judges with essential science education (Gertner et al., 2021;
NCSI, 2022). Expanding such efforts by integrating scientific education into judges’ training and
their continuing of judges will likely play an increasingly important role in improving
consistency and fairness in sentencing outcomes for certain defendants moving forward.
VI. SUMMARY AND CONCLUSIONS
The criminal justice system–ranging from the policy level to everyday practice and decision-
making–revolves largely around human behavior. Policymakers, lawmakers, and judges, when
considering sentencing laws, guidelines, and practices, are called to make decisions that bear on
our abilities to predict behavior and risk, understand psychosocial drivers of offending, and
effectively weigh an array of factors in order to determine who and how we should punish
criminal behavior. These are difficult undertakings, and, as a result, decision-makers are faced
with a noisy combination of conditions in which experience, training, and expertise can be both
advantageous but also a gate-way for cognitive biases and heuristics that can philosophically and
practically influence sentencing outcomes (Kahneman & Klein, 2009).
Particularly, the roles of judges in sentencing have continued to evolve and their discretion
remains an important aspect and determinant of the sentencing process (Henry, 2020; Klein,
2005). No two defendants are the same, and understanding their psychological processes,
background factors, and past experiences that inevitably shape them and their involvement in the
criminal justice system are important when weighing whether their sentences are fair, equitable,
and appropriate. Based on existing research, however, it is evident that sentencing discretion and
44
later outcomes are affected by subconscious biases and great inter- and intra-personal variability.
Thus, we must consider if and how discretion can still be utilized so that judges can consider
important individual-level factors about defendants and their backgrounds during sentencing,
while also attempting to minimize the noise and biases that can negatively affect sentencing
outcomes (particularly for defendants coming from vulnerable or minority groups).
In addition to cognitive biases and heuristics, there are an array of ingrained systemic
inequalities whose cascading effects influence sentencing. Belonging to a historically
underprivileged group, being born into poverty, having received insufficient schooling, or having
a mental disorder diagnosis or poor physical health are all key interrelated factors that can impact
a defendant’s sentencing outcomes (Reskin, 2012; Western et al., 2004). Determining how our
policies and systems can better and more holistically sanction individuals will require the
consideration of a myriad of factors at the individual-, systemic-, and policy-levels. Indeed, as
we move forward, the criminal justice system should attempt to better implement psychological
and scientific insights that can help to mark a new chapter in the evidence-based evolution of our
sentencing standards, practices, and decision-making.
45
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