"Justice at any cost? The impact of cost–benefit salience on criminal punishment judgments"

The title of this post is the title of this interesting article recently published in the journal Behavioral Sciences & the Law and authored by Eyal Aharoni, Heather Kleider‐Offutt, Sarah Brosnan and Julia Watzek.  Here is its abstract, along with a couple of paragraph's from the paper's discussion section:

This study investigated the effect of cost–benefit salience on simulated criminal punishment judgments.  In two vignette‐based survey experiments, we sought to identify how the salience of decision costs influences laypeople's punishment judgments.  In both experiments (N1 = 109; N2 = 398), undergraduate participants made sentencing judgments with and without explicit information about the direct, material costs of incarceration.  Using a within‐subjects design, Experiment 1 revealed that increasing the salience of incarceration costs mitigated punishments.  However, when costs were not made salient, punishments were no lower than those made when the costs were externalized (i.e., paid by a third party).  Experiment 2 showed the same pattern using a between‐subjects design.

We conclude that, when laypeople formulate sentencing attitudes without exposure to the costs of the punishment, they are prone to discount those costs, behaving as if punishment is societally cost‐free.  However, when cost information is salient, they utilize it, suggesting the operation of a genuine, albeit labile, punishment preference.  We discuss the implications of these findings for psychological theories of decision making and for sentencing policy, including the degree of transparency about the relevant costs of incarceration during the decision process....

One might wonder whether these results offer any insights into the sentencing judgments of real trial court judges.  Importantly, this study was not designed to generalize to judicial populations and, therefore, is agnostic to the potential role of legal expertise in cost discounting.  However, to the degree that our results capture a general property of human reasoning, they provide justification to separately test judges in future extensions of this work.  Presently in the USA, judges are not typically required or advised to consider sentencing costs in their punishment decisions, but this norm is beginning to be challenged, with some jurisdictions now requiring prosecutors to disclose sentencing cost information to judges (Ewing, 2018).  Presumably judges are well‐versed in such cost information, but the question implied by the new policy and raised by this study is whether recruiting transient attention to this information might influence punishment attitudes.

Research suggests that experts, including judges, are not immune to heuristic reasoning.  Experts have demonstrated susceptibility to many of the same heuristic processes that shape lay reasoning, such as anchoring, base rate neglect, and opportunity cost neglect (Bennett, 2014; Northcraft & Neale, 1987; Vera‐Muñoz, 1998; West et al., 2012; Wong, Aharoni, Aliev, & DuBois, 2015).  Thus, it would not be especially surprising if punishment recommendations by professional judges are also affected by cues that increase the saliency of the costs of incarceration.  If attention to cost information affects judicial punishments, this would confer great power to the external, situational cues that draw our attention.  Such cues might include explicit prompts, for example, about the costs of incarcerating versus releasing a defendant, or the other allowable uses of the available funds.  How best to communicate risk and benefit information to fact finders (e.g., probationary presentencing reports? appellate review?) is the subject of a growing body of scholarship (Chanenson, 2005).  Efforts to understand judicial decision making must necessarily consider the role of communication strategies within existing legal policy and practice.