“Why should we not take the legal literature as it stands?
Why not accept the principals which the academic lawyers infer from the reasoning of senior judges?
The first answer to that question has little to do with psychology. It is that the (perforce) abstract and diffuse enunciation of sentencing principles offers limited scope for understanding sentencing in the individual case. “
It is quite logical that the rules and acts are there to set main example that would suit situations in general terms or main aspects like murder, theft or rape but because, understandibly there are so many different sitiations with various circumstances that are to be considered with every new case.
One of the reasons “for scepticism about judges’ expressions of sentencing principles does derive from the work of psychologists. The literature of cognitive psychology has shown, clearly and repeatedly, that people in general simply do not have enough access to their own thought processes for us to take their reasons seriously. “
“While skilled problem-solvers may not be able to tell us explicitly how they proceed while solving a problem, they are able to complete the solving itself. If we ask them to think aloud in written protocols, the analysis of the protocols might lead us to a formal description of what, in fact, is done. We have tried this. Rather informally, but the results were disappointing. The most striking result was that what was said while thinking aloud created a rather chaotic and unsystematic impression.”
In interviews with Crown Court judges (Fitzmaurice, 1981), one judge said: ‘When a judge passes sentence ... there are so many things which he has got to take into account ... it’s just in what I call the mental mixer of sentencing.’ This sort of description is echoed by judges interviewed by Ashworth el al. (1984): ‘Most judges described it as an instinctive process, using such terms as “instinct”, “experience”, “hunch” and “feeling”. ‘ In the authoritative Encyclopaedia of Crime and Justice, edited by Stanford Kadish (1983), Judge Marvin Aspen describes sentencing thus:
Sentencing is anything but simple task. Many diverse data must be considered by the judge: other material must be consciously excluded from the sentencing equation. After this tortuous process, the judge will render a reasoned sentence that is subject to one final ‘litmus’ test: is the sentence what is best for society? If it is, then judge has performed well.”
Having look into judgement process it is inevitable to study Oedipus complex. The Psychology of Judicial Sentencing by Catherine Fitzmaurice and Ken Pease from 1986 takes its look on the Oedipus complex trough Freud. From Sophocles’ play, “Oedipus kills his father, Laius, Freud argues, because of jealous wish to possess his mother. In Sophocles’ play, however, Laius is largely instrumental in causing his own death. He goads (in both senses) Oedipus, who retaliates with fatal results. Thus, in large measures, Laius’ death resulted from his own bellicosity. Despite this, Freud takes the story as an illustration of the son’s desire to kill the father. Popular culture as well as academic psychology has uncritically followed the conventional Freudian interpretation. Yet the conventional view fits the original story less well than does the alternative interpretation that Oedipus myth is (...) really about paternal envy and fear. (...) The interpretations can be the product of respect for power? Fathers are more powerful than sons. (...) Unconscious wishes are more safely located in the psyche of Oedipus than in that of Laius. What is meant by safety in this context?
Safety here means the confidence of not suffering guilt or ridicule, the confidence that the blessings of the powerful feeding hand. Consistent with this sort of interpretation is the fact that psychological research on decision-making in courts has tended to concentrate more on the decisions of jurors than on the decisions of judges (...). Perhaps judicial criticism of jurors by judges (...) has been more likely to be translated into funded research than has jurors’ criticism of judges. “
“Now going back to sentencing, "some judges regard the process of sentencing as uncomplicated. In the opinion of Lord Devlin, ‘In the majority of cases there is little room for choice. The judges has only to fix the appropriate term of imprisonment by applying the tariff to the circumstances of the case.’ “
Idea of false consensus bias comes from the fact that “people tend to generalise falsely from their own views to a belief in a consensus. They take their choices and judgements to be relatively common and appropriate to existing circumstances while viewing alternative responses as uncommon, deviant and inappropriate.”
Another psychological conclusion that I found after examples given through the study of this book which I completely agree with is that “people tend to ignore or to underlay the prior probability of out-comes and to emphasise unduly individual case information in making decisions. (...) People so much prefer to base their judgement on information about individuals that they will do so even when that information is fallible, and that doing so they will ignore information about overall probabilities which they could properly use.” This tells me in it's full sense that there can be a reasonable room for misjudgement and that person's background, beliefs etc whether that would be of a judge or a defendant can influence the verdict.
Other very straight to the point summary of what can be seen as some sort of form of influence of impure judgement in my eyes called the 'knew-it-all-along-effect’ which is “that a judge may, when sentencing someone with a previous record, reconstruct with inappropriate confidence the likelihood of the reappearance before the court, and may reconstruct the story about what explained the reappearance. It is argued that the effect of this would be to increase the severity of sentence imposed on those with previous records beyond the increase which would be appropriate on other grounds (...). “
Process of giving reasons for the judgement has also been explored, when the choice of reasons lies between few alternatives it is more likely to be trusted more. “If the judge has clear recollection of the facts of the case they may appear more clearly as justifications of sentence. If the reasons are well tried they will invite more confidence in their truth.” Then, “the relevance of the research is only indirect, because it deals with sentencers’ acceptance or rejection of the people’s preffered reasons rather than with the formulation of sentencers’ own reason. (...) These reasons included: having a mental blackout before the crime; being overcome by an irresistible urge; coming from neighbourhood where the behaviour was the rule rather than exception; cold deliberate choice (...) .”
All the quotes and inspiration
'The Psychology of Judicial Sentencing by Catherine Fitzmaurice and Ken Pease, (1986)'
