Sentencing by Computer: Enhancing Sentencing Transparency and Predictability, and (Possibly) Bridging the Gap between Sentencing Knowledge and Practice

Abstract

Computer technology is rapidly infiltrating and changing many aspects of the law. Judicial decision-making has, however, remained largely impervious to technological developments. Sentencing is one of the most controversial, complex and dynamic legal areas. Sentencing law is also fundamentally broken and has resulted in a mass incarceration crisis, which is the most serious sociolegal problem currently afflicting the United States. Despite this, it is also ostensibly one of the areas of law that is most amenable to automated decisionmaking. This is because the relevant variables that inform sentencing decisions are normally clear, especially in circumstances where an offense attracts a presumptive or fixed penalty. In this Article, we examine the desirability of computers, rather than judges, making sentencing decisions. Some disadvantages may be associated with sentencing by computer, including the possibility that there could be less opportunity to adapt penalties to the specific facts of a case than if a judge made the decision. However, if an algorithm is developed and applied in a clear and transparent manner, the benefits of computerized sentencing will outweigh the potential disadvantages. Indeed, we argue that computerized sentencing has the potential to achieve superior outcomes to sentences imposed by judges. In particular, it can lead to greater transparency, predictability and consistency in decision-making, and eliminate the subconscious bias that currently afflicts the decisions of some judges. Moreover, the introduction of computerized sentencing could be the catalyst for a much needed, wide-ranging reassessment of substantive sentencing law, as occurred four decades ago when the United States’ sentencing system changed from an indeterminate system to the largely prescriptive process that exists today. A fundamental review of sentencing law would almost inevitably close the gap between sentencing knowledge and practice, thereby resulting in profound community benefits, including enhanced community safety and a reduction in the number of prisoners.

Keywords: Sentencing, Computerized Decisions, Increased Transparency, Fairness and Efficiency

JEL Classification: K14