Sentence Noise and Decision Hygiene - Part One

You may be wondering about the nature of sentence noise. A recent book on professional decision-making defines “noise” as unwanted variation in judgments. It refers to discrepancies that are seen in decisions involving an element of subjective judgment. Daniel Kahnman, Oliver Sibony, Cass R. Sunstein, Noise:  A Flaw in Human Judgment (Little, Brown Spark, 2021). Not surprisingly, the authors devote an entire chapter to criminal sentencing. It turns out that a good number of factors, including a judge’s cognitive style as well as numerous extraneous circumstances, lead to variation in sentencing decisions.

We know this intuitively, and we should know there are no hard and fast rules for avoiding disparity in sentencing. Yet the authors make a good case for looking at a judge’s cognitive style and also focusing on the structure of decision-making. The latter can be improved with practices referred to as decision hygiene. The former, to some extent, can be improved when judges actively search for new information before making a decision.

Before going into specifics, let me say that this book made me reflect on the many extraneous factors that influence a decision. Studies show that judges tend to be less lenient on a Monday following the loss of a local sports team, they can be overly harsh due to hunger or fatigue, they can be influenced by hot weather (not in a positive way), and they tend to be more lenient on a defendant’s birthday. If all of that comes as no surprise, there’s also a sequencing effect where judges lean in the opposite direction to restore balance after a series of lenient or harsh decisions. fn.1

Putting aside extraneous factors for the moment, a judge’s cognitive style apparently makes a difference in the quality of subjective judgments. The best judges – and here I refer generally to persons who make professional judgments, whether judicial or otherwise – tend to be intelligent, well trained, and thoughtful in their decision-making. They are smart, experienced, and reflective in their approach. They do not make snap decisions but rather engage in a slow and careful thought process.

In the same vein, the best decision-makers are those who stay open to new information. These people “actively search for new information that could contradict their prior beliefs, who are methodical in integrating that information into their current perspective, and who are willing, even eager, to change their minds as a result.” fn.2

Not all people possess the qualities of a good decision-maker, but decision hygiene practices can improve the process. Decision hygiene encourages guidelines for recurring decisions, and it’s no surprise that sentencing guidelines have been shown to reduce noise in sentencing decisions. Unfortunately, advisory sentencing guidelines are less effective than mandatory sentencing guidelines (as demonstrated by a study of the federal sentencing guidelines before and after Booker).fn. 3

The authors additionally recommend decision hygiene practices going beyond guidelines. Complicated or complex judgments warrant a disciplined, slower thought process. The decision-maker should first strive to gather as much objective information as possible. Next, the problem should be broken into component parts. From there, the decision-maker should assess the facts and evaluate the component parts independently. The point is to weigh each factor separately so that no single factor plays an outsized role. The process is akin to that of a good hiring manager who does not hire based on overall impression but rather carefully reviews each trait of the job candidate before making a decision.

Decision hygiene, it turns out, is not about removing discretion from the decision-making process but rather fine-tuning the exercise of discretion. Good decision-makers will use a disciplined approach before relying on personal intuition. “We don’t want to eliminate intuition from the process, and by intuition, I really mean that subjective sense that it’s a judgment that you are making. What we are trying to do is to delay intuition and process information before exercising your intuition. If we could convince judges to do that – to engage in a disciplined thought process before they form an intuition or global judgment – that would be a big improvement.” fn.4

There’s nothing earth-shattering in the studies or recommendations in the book but taken together they offer a path to better decision-making. In an era of now-advisory sentencing guidelines, it may be time to look at how judges make their decisions. Can we improve the process and end result? In Part 2 (coming next month), we’ll look at objective ways to measure mitigating circumstances and some creative ways to encourage judges to stay open to information and withhold judgment for just a moment or two longer.

by Anne Yantus

Anne Yantus is a sentence consultant, working with court-appointed and retained attorneys to promote more favorable sentencing outcomes.  Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office.  Following her time with SADO, Anne taught a criminal sentencing course at University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC.  Anne welcomes your Michigan felony sentencing questions and is happy to arrange a no-cost consultation for court-appointed attorneys using available Michigan Indigent Defense Commission funds.

Footnotes

1. Noise, at 86-90.
2. Noise, at 235.
3. United States v Booker, 543 US 220 (2005).  See Noise, at 20.
4. Interview with Noise co-author Daniel Kahneman in Behavioral Scientist magazine, May 2021.
https://behavioralscientist.org/a-conversation-with-daniel-kahneman-about-noise/