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Excerpted From: Samantha Cremin, Nudging Judges Away from Implicit Bias: Using Behavioral Science to Promote Racial Equity in Federal Sentencing, 56 New England Law Review 57 (Fall, 2021) (178 Footnotes) (Full Document)


SamanthaCreminIn December of 2020, the U.S. Sentencing Commission (“USSC”) reported its latest results regarding the demographic differences found in sentencing patterns under the Federal Sentencing Guidelines. The results of the study reflect a resounding sentiment that has been the reality for our criminal justice system since its inception--people of color are and have been continually discriminated against in almost all phases of their interactions with the justice system. By comparing average sentencing practices, the report supported the fact that Black men receive significantly longer sentences than their similarly situated white counterparts, even in recent years when discussions on inequitable treatment of people of color in the system have been frequent and prevalent.

A possible explanation for these continued discrepancies in federal sentencing has been attributed to implicit biases held by decision-makers and the amount of discretion that they wield in making sentencing determinations. Since implicit cognitive functions are at play in this type of discrimination, combating these functions with alterations to the Federal Sentencing Guidelines that account for theories based in behavioral science could produce effective results on an issue that desperately requires attention. Nudge theory is the idea that individual decision-making can be altered by the way in which choices or information are presented to the chooser, through a process called choice architecture.

This Note argues that the application of nudge theory to the everyday use of the Federal Sentencing Guidelines could bring judicial attention to the issue of racial sentencing disparities and implicit biases that could be motivating or overshadowing judges' sentencing decisions. This Note puts forth the recommendation including an advisory notice regarding racial inequity in sentencing in the packet containing the Federal Sentencing Guidelines, serving as the nudge for each judge. This shift of focus while seeing the advisory notice, even if brief, could improve consciousness of racial sentencing disparities as the decisions are being made in real-time and could potentially lead to more equitable trends in judicial choice architecture in sentencing people of color. Part I of this Note will lay out the concept of nudge theory in-depth, describing its real-world applications and potential for utilization in the courtroom. It will also provide a comprehensive understanding of the operation of the Federal Sentencing Guidelines and judicial discretion therefrom. Part II of this Note will explain the necessity for changes to be made to the Guidelines and the repercussions for not doing so, viewed through a Critical Race Theory lens. Part III of this Note will argue how an intertwining of behavioral science and judicial decision-making could yield more equitable sentences for people of color, given the ways in which nudge theory has been applied and been successful in numerous other settings outside the courtroom.

[. . .]

Black people in this country are being discriminated against in the American federal sentencing system and, in a consistent and systemic showing of inherent biases and racism, are receiving longer sentences than similarly situated white defendants. With behavioral sciences such as nudge theory showing such promise toward positive changes in thinking, drawing the line between judicial discretion and sentencing cannot ignore the inherent biases that affect sentence length. The information and the potential changes to bring about an equitable solution are out there--it is their integration into the system that must be pushed forward. “[G]uidelines matter: where in force, they are an important part of the choice architecture in which sentencing takes place ... researchers must seek to assess both the likely interaction between heuristics and sentencing guidelines, and the implications of this relationship for achieving the goals of sentencing.” The criminal justice system can achieve these equitable goals by integrating changes that are minimal in cost, but potentially high in reward: the precise premise behind nudges. Curbing the ability for judicial biases to seep into sentencing, biases which perpetuate the ever-prevalent discrimination against people of color in America, should be reason enough to make this jump to the use of the nudge to encourage equitable outcomes in sentencing.

J.D., New England Law | Boston (2022). B.A., Legal Studies and Political Science, University of Massachusetts Amherst (2019).

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