Cognitive Biases and Procedural Rules: Enhancing the Use of Alternative Sanctions
In: European Journal of Crime, Criminal Law and Criminal JusticeThe practice of short-term imprisonment has been long criticised due to its criminogenic effect and costs. To minimise its use, many European countries introduced alternative sanctions such as community service or home confinement with electronic monitoring. Unfortunately, in practice those sanctions are often imposed on non prison-bound offenders, a phenomenon termed ‘the net-widening problem’. Consequently, instead of reducing the prison population, the alternative sanctions substitute lighter punishments such as fines or conditional imprisonment. The discretion power whether to impose a prison sentence or its alternatives lies in the hands of the judges. Therefore, the way to enhance the use of alternative sanctions as a substitute to short-term imprisonment is to change the behaviour of judges. This paper adopts the behavioural law and economics approach to discuss, in the context of European criminal justice systems, how certain procedural rules overcome or use cognitive biases in order to promote the use of alternative sanctions.
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12
R.H. Thaler and C.R. Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (New Haven, ct: Yale University Press, 2008).
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14
S. Cohen, Vision of Social Control (Cambridge: Polity Press, 1985) pp. 41–42.
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G. McIvor, Sentenced to Serve (Worcester: Billing and Sons, 1992) pp. 142–143.
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See, for example, ibid., p. 9.
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K. Beyens and D. Kaminski, ‘Is the Sky the Limit? Eagerness for Electronic Monitoring in Belgium’ in Electronically Monitored Punishment, op. cit., pp. 150–171, at p. 165. The optionof substituting a prison punishment with electronically monitored home confinement still exists in Belgium. However, in addition, this year (2014) electronic monitoring was introduced also as a court penalty. See Federale Overheidsdienst Justitie (C-2014/09072), 7 Februari 2014 — Wet tot invoering van het elektronisch toezicht als autonome straf; see also Orde Express, Elektronisch Toezicht als Autonome Straf (13 March 2014), available online at http://www.ordeexpress.be/artikel/59/543/elektronisch-toezicht-als-autonome-straf (accessed 17 June 2014) (in Dutch). Another example for this procedure is the Dutch ‘Electronic Detention’. This scheme constitutes a way to execute a prison sentence of up to 90 days. Similar to Belgium, the candidates for this scheme are chosen from the pool of prisoners. Furthermore, the Prison Department is the body in charge of converting the prison sentence and not the trial court. See R. van Swaaningen and J. uit Beijerse, op. cit., p. 179.
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Cognitive Biases and Procedural Rules: Enhancing the Use of Alternative Sanctions
In: European Journal of Crime, Criminal Law and Criminal JusticeThe practice of short-term imprisonment has been long criticised due to its criminogenic effect and costs. To minimise its use, many European countries introduced alternative sanctions such as community service or home confinement with electronic monitoring. Unfortunately, in practice those sanctions are often imposed on non prison-bound offenders, a phenomenon termed ‘the net-widening problem’. Consequently, instead of reducing the prison population, the alternative sanctions substitute lighter punishments such as fines or conditional imprisonment. The discretion power whether to impose a prison sentence or its alternatives lies in the hands of the judges. Therefore, the way to enhance the use of alternative sanctions as a substitute to short-term imprisonment is to change the behaviour of judges. This paper adopts the behavioural law and economics approach to discuss, in the context of European criminal justice systems, how certain procedural rules overcome or use cognitive biases in order to promote the use of alternative sanctions.
| All Time | Past Year | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 269 | 57 | 9 |
| Full Text Views | 244 | 6 | 2 |
| PDF Views & Downloads | 80 | 14 | 5 |