The promise of behavioral economics for understanding decision‐making in the court

• DOI: http://doi.org/10.1111/1745-9133.12461
• Date: 01 November 2019
• Author: Theodore Wilson
• Published date: 01 November 2019

DOI: 10.1111/1745-9133.12461

RESEARCH ARTICLE

BEHAVIORAL ECONOMICS IN COURT

The promise of behavioral economics for

understanding decision-making in the court

Theodore Wilson

University at Albany,SUNY

Correspondence

TheodoreWilson, School of Criminal Justice,

Universityat Albany, SUNY,209B Draper Hall,

Albany,NY,12222.

Email:t hwilson@albany.edu

Iwish to thank Br ian Johnson, Chae Jaynes,

MatthewKijowski, Megan Kurlychek,and

Samantha Pentafor helpful comments and

suggestionson earlier versions of the current

projectand ar ticle.

Research Summary: Decision-making scholarsof ten limit

their purview to the decision to offend, whereas sentencing

scholars focus on court case processing within administra-

tive data sets. What is missing between these two camps is

an incorporation of the sanctioning process into offender

decision-making and an integration of relevant findings

from offender decision-making and behavioral economics

into courtroom actor decision-making. In this article, I

highlight several specific concepts from behavioral eco-

nomics that can be applied to the court and interpret exist-

ing sentencing research in light of these same behavioral

economic concepts.

Policy Implications: I also discuss how sentencing schol-

arship can be integrated into offender decision-making

research, further bridging the two domains. I conclude with

discussions of policy adaptations based on current and

future research expanding into these proposed areas.

1INTRODUCTION

Criminologists are often concerned with decisions and the outcomes of those decisions, whether it be

in the context of offender decision-making or those decisions made by the myriad actors throughout the

criminal justice system. Despite this wide relevance, a disconnect in the field primarily pervades where

decision-making scholars limit their inquiries to the decision to offend, whereas sentencing scholars

focus on administrative data sets. The result has been numerous adaptations of decision-making schol-

arship outside of criminology to the decision to offend (see from this issue the following articles:

Herman & Pogarsky, 2019; Hoeben & Thomas, 2019; Loughran, 2019), and a growing understanding

of court case processing (Baumer, 2013; Spohn, 2015; Tonry, 2014; Ulmer,2012). What is missing on

both sides of the research divide, however,is an incor poration of the sanctioning process into offender

Criminology & Public Policy. 2019;18:785–805. wileyonlinelibrary.com/journal/capp © 2019 American Society of Criminology 785

786 WILSON

decision-making and an integration of the decision-making lessons from behavioral economics into

courtroom actor decision-making. I will be focusing on the latter issue but will return to the former

in the policy review in hopes of bridging this artificial divide to encourage decision-making scholars

to move beyond the decision to offend and to encourage sentencing scholars to engage with decision-

making scholars to augment their investigations of the court.

Such engagement between sentencing scholars and decision-making scholars is a natural, even

expected, fit given the origins of sentencing theory in decision-making scholarship outside of crimi-

nology. Although sentencing theories were developed bylegal scholars and ethnographic observations

of the court (Eisenstein & Jacob, 1977; Ulmer & Kramer, 1996), the related insights from these stud-

ies comprise known behavioral economic components and principles. Albonetti (1987, 1991), in her

attribution theory, proposed court actors make causal attributions to reduce uncertainty and develop

patterned responses in reaction to these attributions. Albonetti’s model is an extension of Simon’s

(1957, 1982) work concerning bounded rationality (March & Simon, 1958) and is consistent with the

findings reported in the broader literature on decision-making under conditions of uncertainty (Savage,

1954) and ambiguity (Camerer & Weber, 1992). Individuals are aversive to uncertainty (Camerer &

Weber,1992; Ellsberg, 1961) and will attempt to leverage signals, cues, heuristics, and partial informa-

tion to try to reduce uncertainty in decision-making (Gigerenzer & Gaissmaier, 2011; Kahneman, 2011;

Tversky & Kahneman, 1974). Albonetti’s attribution theory, although limited to the court, is consistent

with the findings reported in the broader decision-making literature in which scholars have explored

the processes decision-makers employ to mitigate and reduce uncertainty (Simon, 1957; Thaler, 2015;

Thaler & Sunstein, 2009).

Other explanations of courtroom actor decision-making are likewise consistent with the reported

findings from decision-making work outside of sentencing scholarship. Much of this work was

directed toward understanding racial disparities in court case processing with potential explanations

including focal concerns theory (Steffensmeier, Ulmer, & Kramer, 1998), stereotypes, and implicit

bias (Rachlinski, Johnson, Wistrich, & Guthrie, 2008). Steffensmeier et al. (1998) proposed that

judges made their decisions based on practical resource constraints and on the judge’s assessments of

the defendant’s blameworthiness and dangerousness. Steffensmeier and colleagues (1998) then used

this framework to conclude that young Black men were punished more severely because they were

believed to be more blameworthy and dangerous by these judges. This mechanism is consistent with

that of Albonetti (1987, 1991) concerning attributions by courtroom actors driving decision-making.

Stereotypes and implicit bias likewise relate differential attribution processes by individuals with

respect to race, in which different racial groups prompt different responses by courtroom actors. Each

of these explanations, although not explicitly framed as such, can also be subsumed under the umbrella

of heuristics, specifically the availability and representativeness of heuristics (Tversky & Kahneman,

1974). Here too, then, sentencing theory is linked to and can be further linked with behavioral eco-

nomic principles. Many other concepts have arisen within behavioral economics and decision-making

that can likewise be included within future models of courtroom actor decision-making.

The purpose of this article is to make these relevant behavioral economic concepts accessible in

laying a foundation for both future scholarship and policy advancements directed at the intersection

of decision-making and the court. The rest of this article is organized as follows. First, I provide a

more comprehensive assessment of the theory underpinning both behavioral economics and sentenc-

ing theories. I then continue by discussing five prominent behavioral economics concepts that can,

and should be, readily integrated into the ongoing sentencing discourse. As part of this discussion,

I highlight findings from relevant empirical sentencing work that overtly or tacitly implicates these

behavioral economic principles. I follow this discussion with a treatment of policy and how the crim-

inal justice system can be modified and improved now and in the future on the basis of the insights