Der schwierige Weg der Dritten Gewalt zwischen Freiheit und Sicherheit

The Federal Constitutional Court is searching for a legal instrument with which it can enforce the entitlement to freedom of those sentenced to lengthy prison terms when leniency is not shown due to the passivity of correctional facilities. Increasingly – and in contrast to the 1990s – judicial ministries urge correctional facilities to be conservative with respect to decisions on privileges due to the prioritization of aspects of public security (trial vs. expectation clauses). The courts responsible for the execution of civil judgment need successful experiences in the liberalization of the enforcement of sentences in order to give a positive legal prognosis. With its most recent decision, the Federal Constitutional Court affirmed its determination to aid the inmates’ entitlement to freedom if the penal system does not relax sentences. From a criminological perspective, it is already the case that the relevance of leniency tests for the creation of prognoses is questioned. A sentence enforcement chamber of the regional court in Aachen recently ordered the release of a prisoner after 35 years without any leniencies. Specialists’ appraisals were given priority over the judicial correctional facility’s judgment. Under consideration of the advantages and disadvantages of denied privileges the paper calls for stronger constitutional access for the courts responsible for the enforcement of sentences.     

Risk assessment in sentencing and plea bargaining: The roles of prosecutors and defense attorneys

Research on risk assessment in sentencing has focused heavily on the role of judges. Ignoring the role of other courtroom actors in the sentencing process, however, leaves unexamined the potentially significant effects on judicial decision making of arguments made by prosecutors and defense attorneys at sentencing hearings. Unduly focusing on judges also overlooks the vast majority of sentences arrived at through negotiated guilty pleas. We explored the extent to which considerations of risk are made among prosecutors and defense attorneys when advocating for given sentences in open court or during plea negotiations. We surveyed all prosecutors and defense attorneys in 14 judicial circuits in Virginia and found that most prosecutors and defense attorneys at least “sometimes” explicitly invoked actuarial risk estimates both at sentencing hearings and during plea negotiations. However, defense attorneys were much more likely than prosecutors to be averse to the use of risk assessment in either form of case disposition.     

The Role of Constraints in Creative Sentence Production

Two experiments explored how people create novel sentences referring to given entities presented either in line drawings or in nouns. The line drawings yielded more creative sentences than the words, both as rated by judges and objectively by a measure of the amount of information that the sentences conveyed. A hypothesis about the cognitive processes of creation predicted this result: Creativity depends on constraints. Line drawings of entities present more information about them than nouns denoting the same entities, and so the pictures provide more constraints than the nouns. Hence, line drawings yield more creative sentences than words.     

Adjusting risk of recidivism: do judicial departures worsen or improve recidivism prediction under the Federal Sentencing Guidelines?

A limited amount of research exists examining the ability of clinical or intuitive adjustments of formalistic methods of decision-making to improve upon predictive accuracy beyond that of the original measure. Using receiver operator characteristic (ROC) curves and the departure decisions of federal judges, the recidivism predictive utilities of two measures were compared. The two measures were the Criminal History category, based on the Federal Sentencing Guidelines (a formalistic procedure), and a re-coded measure of criminal history derived from the sentences actually imposed by judges after they departed from the Guidelines upwards or downwards for recidivism reasons (an adjustment to the formalistic procedure). Both a 10 year post-sentencing recidivism follow-up and a 6 year uniform follow-up period suggested that the Criminal History category performed poorly in predicting recidivism for this offender population, and that judicial departures not only failed to improve, but actually worsened, the predictive accuracy of pre-departure judgments. Policy implications of the findings are discussed.     

Effects of Defendant Background and Remorse on Sentencing Judgments

Previous evidence that subject sentencing judgments are mediated by considerations of equity led to the hypothesis that defendant remorse and an impoverished defendant background would each reduce subject sentencing judgments. Results from 48 male and 48 female student subjects showed that remorse had the predicted effect ( p < .02) but background did not. Regardless of the initial manipulation, sentences shifted significantly toward leniency ( p < .02) after subjects had engaged in group discussion. The effect for remorse is consistent with the contention that the equity principle extends to psychological factors, while the leniency shift raises the possibility that jury deliberations tend to favor the defendant.     

The lay assessment of subclinical depression in daily life

This study examined how laypersons assess subclinical depression in others on the basis of information about their daily lives. For 2 days, 96 participants were tracked with the Electronically Activated Recorder, a naturalistic observation method that samples ambient sounds from participants' momentary environments. Judges rated participants' levels of depression after listening to the sampled ambient sounds. Participants' depressive symptoms were assessed with the Beck Depression Inventory. Overall, judges showed little accuracy at determining participants' levels of depressive symptoms from the ambient sounds. Exploratory analyses, however, revealed that judges were more accurate among moderately and severely depressed participants, presumably because the cues judges used to assess depression (e.g., spending time alone, not socializing, not laughing) discriminated successfully only at high levels of subclinical depression.     

Sentencing Disparity: Perforce or Perchance?1

Important sources of variability in sentencing judgments are identified by decomposing these judgments in a Crime × Judge analysis of variance into a Crime main effect (representing consensus) and several forms of disparity. Two systematic forms of disparity are (1) the Judge main effect, reflecting differences in overall harshness or leniency of different judges; and (2) the Crime × Judge interaction, reflecting idiosyncracies—perhaps principled—in the way particular judges view particular crimes. A third unsystematic form of disparity is reflected in variations in how the same judge views the same crime/offender on different occasions, that is, unreliability. Data from an experiment in which state district judges made sentencing decisions about the same crime/offenders on two occasions are presented to illustrate application of the model and obtain disparity estimates for 13 crimes. Results reveal that for most of the crimes disparity can be attributed primarily to simple unreliability over occasions rather than principled disagreements among judges. Implications of these results and the importance of distinguishing different types of disparity are discussed.     

KNOWING WHEN TO SAY WHEN: A SIMPLE ASSESSMENT OF ALCOHOL IMPAIRMENT

The use of writing samples as indices of alcohol impairment was explored. Students at a campus fraternity party wrote a sentence and their signatures before and after consuming alcohol (in beer and mixed drinks). Later, undergraduate and graduate students attempted to discriminate between pre- and postparty handwriting samples. The average percentage of correct discriminations of entrance and exit writing samples was 83.7% for sentences and 67.5% for signatures, and the percentage of correct discriminations increased directly with the blood alcohol concentration of the partier who gave the writing sample. When a partier's blood alcohol concentration reached 0.15, all of the judges accurately discriminated 90% or more of the sentences, and 25 of the 28 judges correctly discriminated at least 80% of the signatures. All of the judges correctly discriminated at least 90% of the 18 sentences written by partiers with a blood alcohol concentration of 0.12 or more. Implications of these findings for reducing the risk of driving while intoxicated are discussed, as well as directions for follow-up research.     

Normalization in the courtroom: Does the formation of a group norm affect how judges adjust prosecutors' demands?

Legal archives concerning a new type of offence first introduced onto the French statute books in 2005 reveal a normalization effect over the following 2 years in judges' sentence decisions but not in prosecutors' sentence demands. We examine the hypothesis that the formation of a normally accepted range of sentences will influence how judges respond to the extremity of the prosecutor's initial sentence demand. In line with a normalization perspective, results reveal that judges were less influenced by extreme (out‐of‐range) sentence demands but more influenced by moderate (in‐range) sentences in 2007 than in 2005. Over time, it seems that a shared standard of reference is established, which appears to lead judges to adjust moderate prosecutor demands less and extreme prosecutor demands more. Copyright © 2013 John Wiley & Sons, Ltd.     

Stakes and risk: Incapacitative intent in sentencing decisions

Measures of seriousness of the conviction offense and prior criminal record are strong correlates of sentences. This is consistent with a desert orientation to sentencing. Competing sentencing theories emphasize concepts of risk and incapacitation, but their roles in sentencing decisions have received less attention. This study focused on judicial risk assessments and on the concept of stakes. Both variables plausibly are related to incapacitative intents of judges. Our hypotheses that the risk and stakes measures used are relatively independent and correlated with, and have an interaction effect on, decision outcomes were supported. Both judges' assessments of risk and our stakes scale accounted for substantial variation in the decision to incarcerate. Time actually served in confinement also was related substantially to stakes, risk, and their interaction. Implications of the stakes and risk concepts for future guidelines development and decision study in criminal justice are discussed.     

Race, youth violence, and the changing jurisprudence of waiver

This article analyzes the legal history and jurisprudential theory of legislative offense-exclusion and prosecutorial waiver laws over the past quarter-century. Initially concerns about racial discrimination and civil rights motivated the Supreme Court in Kent v. United States to require due process in judicial waiver hearings. Offense-exclusion and "direct file" laws evolved and expanded in direct reaction to Kent as lawmakers sought simple and expedient alternatives to judicial waiver hearings. The "just deserts" sentencing movement of the 1970s, which advocated determinate and presumptive offense-based sentences, provided a conceptual alternative to judicial discretion and a jurisprudential rationale for offense exclusion laws. Research on delinquent and criminal careers in the 1970s, which initially promised empirically grounded selective incapacitation sentencing strategies, provided another conceptual foundation for offense-based waiver laws that focused on youths' prior records. Finally, offense exclusion provided a politically attractive strategy for "get tough" public officials who proposed to "crack down" on "baby boom" increases in youth crime. The jurisprudential shift in sentencing emphases from considerations of the offender to characteristics of the offense relocated waiver and sentencing discretion from judges to prosecutors. By the early 1990s, as a result of political "crack-downs" on youth crime, the scope of excluded offense legislation increased substantially, became overly inclusive and excessively rigid, and exhibited many of the negative features associated with mandatory sentencing laws.     

Die Sachverständigenexpertise im Spannungsfeld zwischen Justiz und Psychiatrie am Beispiel des Hangbegriffes des § 66 StGB (Sicherungsverwahrung)

Using the example of psychiatric expert opinions in trials leading to preventive detention, we analysed how far the corresponding orders by the courts were suited to guide the psychiatric experts and restrict them to their area of expertise. Furthermore we concentrated on the question, what reasons were given for preventive detention on both psychiatric and judicial side and how psychiatric arguments were adopted by the judges. Our results show clearly, that placing an order with the psychiatric expert as well as adopting the psychiatric arguments for preventive detention occur mainly in a stereotypic way. Psychiatric and judicial arguments for preventive detention refer both to previous delinquency. Aspects concerning the offenders personality appear to be secondary, although they play a major role in the decision for preventive detention. The article shows the controversy associated with forensic-psychiatric expertise in the courtroom and the need for communication and clarification between psychiatry and law.     

The judicial dialogue

A variety of theoretical positions are emerging to explain the judicial process from such perspectives as hermeneutics, semiotics, critical theory and argumentation/rhetoric. They ask such questions as these: What is the source of judicial authority? How do judges arrive at their decisions? By what logic are decisions to be tested? In this essay I argue that a focus on decisions and their justifications alone masks the broader process in which judges, along with all the other relevant groups, engage in a continuing and evolving dialogue to structure their normative universe through the complementary processes of dialectic and rhetoric. Contemporary concepts of argumentation can serve to analyze this process critically.     

Sentencing Under Uncertainty: Anchoring Effects in the Courtroom1

Research on juridical decision making has demonstrated that largely disparate sentences are often given for identical crimes. This may be the case because judges' sentencing decisions are influenced by a recommended or demanded sentence. Building on research on judgmental anchoring (Tversky & Kahneman, 1974), the present investigation examines whether a sentencing demand has a direct influence on a given sentence. Using criminal trial judges as participants, Study 1 demonstrates that such a direct influence does, in fact, exist. Sentencing decisions are assimilated to the sentence demanded by the prosecutor. Study 2 further reveals that this influence is independent of the perceived relevance of the sentencing demand. Study 3 demonstrates that this influence is also independent of judges' experience.     

Interactive effects of characteristics of defendant and mock juror on U.S. participants' judgment and sentencing recommendations.

The authors examined the effects of interactions (a) between defendant attractiveness and juror gender and (b) between defendant race and juror race on judgment and sentencing among 207 Black, Hispanic, and White participants in the United States. After reading a vehicular-homicide vignette in which the defendant's attractiveness and race varied, the participants rated guilt and recommended sentences. The women treated the unattractive female defendant more harshly than they treated the attractive female defendant; the men showed an opposite tendency. The Black participants showed greater leniency when the defendant was described as Black rather than White. The Hispanic participants showed an opposite trend, and the White participants showed no race-based leniency. The findings on racial effects were consistent (a) with in-group favorability bias among the Black participants and (b) with attribution effects unrelated to race among the White participants.     

Interactive Effects of Characteristics of Defendant and Mock Juror on U.S. Participants' Judgment and Sentencing Recommendations

Abstract

The authors examined the effects of interactions (a) between defendant attractiveness and juror gender and (b) between defendant race and juror race on judgment and sentencing among 207 Black, Hispanic, and White participants in the United States. After reading a vehicular-homicide vignette in which the defendant's attractiveness and race varied, the participants rated guilt and recommended sentences. The women treated the unattractive female defendant more harshly than they treated the attractive female defendant; the men showed an opposite tendency. The Black participants showed greater leniency when the defendant was described as Black rather than White. The Hispanic participants showed an opposite trend, and the White participants showed no race-based leniency. The findings on racial effects were consistent (a) with in-group favorability bias among the Black participants and (b) with attribution effects unrelated to race among the White participants.     

From discretion to disagreement: explaining disparities in judges' pretrial decisions

Judges are afforded considerable discretion in decision-making. Through their exercise of discretion, judges construct society's notion of crime and justice. This study examined 61 lay judges' bail decision-making in the English criminal justice system. The law states that in particular cases decisions to grant bail or remand in custody should be based on the risk of a defendant absconding, offending, or obstructing justice while on bail. However, there is little guidance on how these judgments should be made and how they should affect decisions. It was found that judges varied (disagreed) in their risk judgments and decisions on the same set of simulated cases. The extent of judicial disagreement differed across cases, and the source of disagreement in decisions lay in the variability of judges' earlier risk judgments. The paper discusses how judicial disagreement may be reduced.     

The Unchangeable Judicial Formats

An analysis of a broad sample of Dutch judicial and semi-judicial decisions shows similar structures as the ones Bhatia and Mazzi found before. The question is posed what explains this seemingly unchangeable judicial format. From a perspective of argumentative and communicative efficacy and comprehensibility, the format is certainly not the optimal choice. The explanation is that the format is a sign of an ideology. The format suggests an objectivity of the decision taken. This is actually a myth. This makes a decision to change the format an ideological one.