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March 12, 2009

"Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing"

The title of this post is the title of this interesting-looking new article by Professor Mary Kreiner Ramirez that I just came across via SSRN. Heres is the abstract:

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious.  Moreover, research suggests that such biases may be overcome or at least compensated by education on awareness of bias and countermeasures. Identifying unconscious preferences or biases and learning effective mechanisms for managing and changing unwanted preferences can impact the reasonable exercise of discretion on a case-by-case basis in sentencing decisions.

Judges are expected to render decisions impartially.  Nowhere is the need more critical than judicial determinations impacting liberty interests by imposing criminal punishment, and in particular, imprisonment.  Lack of awareness or education is likely to lead to suboptimal sentencing outcomes based upon in-group bias, inaccurate cultural associations, and other cognitive flaws that will invite further political disruption.  In contrast, investing in cultural competence and social cognition educational programs, and structuring programs to encourage interest in and attendance at such programs, can inform judges to improve their discretionary decision-making by overcoming any latent biases, thereby benefiting society through a more just legal system.

March 12, 2009 at 09:37 AM | Permalink


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I agree with much in this article except for it's main implication. I think giving judges (and all lawyers, and all people for that matter) a wider range of social and psychological experience is a good thing. Where I disagree is that this will someone how or another result in outcomes which are qualitatively better.

In his 40s Carl Jung argued that the fundamental goal of psychology was "to get people to play with their own personalities". By the time he had died near 90, he was forced to admit that this task was a much more difficult one than he had anticipated in his youth. As the philosopher Charles S. Piece once noted, "The meaning of identity is the fundamental inability to change it." I believe that psychology can help people become more aware of the workings of their own mind--it's structures, processes, contents. But the plasticity of the mind is highly overestimated and the impact of such increased awareness or "consciousness raising" is highly variable and unpredictable.

Because I am a psychologist I think that increasing peoples psychological awareness is an important value. But I am somewhat of a pessimist when it comes to the notion that such increases in awareness will lead to external outcomes which are "better". Indeed, the classic example of that is the last book of Gulliver's Travels. I am sure some people will say neigh to such pessimism but I remain skeptical of projects to "improve" people by "improving" the human mind. Not, I hasten to add, because I believe the attempt is worthless but because I believe that outcomes are so arbitrary. Put another way, in the last sentence of the OP I would stress the word "can". Certainly education has the ability to do what the author hopes; it most likely won't, however.

Posted by: Daniel | Mar 12, 2009 11:16:41 AM

Sounds like more blather about cultural relativism which is incompatible with the firm and fair administration of justice.

Posted by: mjs | Mar 13, 2009 9:46:43 AM

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