Cognitive Biases and Procedural Rules: Enhancing the Use of Alternative Sanctions

TLDR: In this article, the authors adopt the unique approach of behavioural law and economics in order to discuss procedural rules that have the potential to achieve the above-mentioned goal, which explains the cognitive biases, which judges are subject to when choosing between a prison sentence and an alternative punishment.

Abstract: The practice of short-term imprisonment has been long criticised due to its criminogenic effect and costs. To minimise its use, many 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 fine or conditional imprisonment. The discretion power whether to impose a prison sentence or its alternatives lies in the hands of the courts. 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 unique approach of behavioural law and economics in order to discuss procedural rules that have the potential to achieve the above-mentioned goal. Each of the analysed procedural rules explains the cognitive biases, which judges are subject to when choosing between a prison sentence and an alternative punishment. Following that, this paper analyses how the suggested procedural rules overcome or use those biases in order to promote the use of alternative sanctions.