Abstract
This article critically examines approaches to the production of systems of support for discretionary judicial decision-making in sentencing. The aim of the article is to attempt to illuminate the character of discretionary judicial decision-making and how academic research has informed the attempt to model the exercise of judicial discretion. Briefly placing the development of decision support systems for judicial sentencing in the context of world-wide themes in sentencing reform, the article proceeds to focus on various attempts to produce systems of decision support for sentencing. It then briefly explores two of the key issues (‘impact’ and ‘institutional authority’) which may determine the future support of such systems. If systems of decision support for judges are to have a future then they must not only be accepted at an institutional level, but also be seen as valuable by those for whom they are designed. Thus, the application of ‘judicial intelligence’ is unavoidable. Underlying the judicial sentencing decision process is some conception of ‘similarity’ between cases. How, then, should this ‘similarity’ be represented? Traditionally, representations of similarity have tended to be informed by ‘the legal-analytical’ paradigm. The supposedly basic building blocks of case information (‘offence’ and ‘offender’ and ‘aggravating and mitigating’ factors) are critically considered. It is argued that systems based on a ‘legal-analytical’ paradigm are limited in their representation of the decision process. These limitations, it is suggested, may be overcome by adopting an approach which tries to represent the informal schema of understanding which decision-makers employ and the holistic way in which they think about a case. It is argued, therefore, that judicial decision-making is amenable to modelling through the use of computer technology, but that there is a need to re-model our conception of judicial ‘intelligence’ on which such technology relies.
This article has been very substantially developed from a paper published in the Journal for Law, Information and Technology: Tata, C, Wilson, J.N.& Hutton, N (1996) ‘Representations of Knowledge and Discretionary Decision-Making by Decision-Support Systems: the Case of Judicial Sentencing’, 2. The Journal of Information, Law and Technology (JILT). http://elj.warwick.ac.uk/elj/jilt/artifint/2tata/
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
Alschuler, A. (1991) The Failure of Sentencing Guidelines: A Plea for Less Aggregation University of Chicago Law Review 58, 901–951.
Alldridge, P. (1997) Anoraks Among the Suits and Jeans: Computers, Law and the Legal Academy. Journal of Law, Information and Technology 1997 (2), http:elj.war-wick.ac.uk/jilt/wip/97_2aldr/.
Allen, H. (1987) Justice Unbalanced: Gender, Psychiatry, and Judicial Decisions. Open University Press.
Armytage, L. (1995) Evaluating the Impact of Judicial Education. Journal of Judicial Administration 4(3), 143–170.
Ashworth, A. (1997) ‘Sentencing by Computer: What Next?’ Criminal Law Review 153–154.
Ashworth, A. (1992a) Sentencing and Criminal Justice. London: Weidenfeld and Nicholson.
Ashworth, A. (1992b) Sentencing Reform Structures. In Tonry, M. (ed.), Crime and Justice: A Review of Research, Vol. 16. Chicago: University of Chicago Press.
Ashworth, A., Genders, E., Mansfield, G., Peay, J., and Player, E., (1984) Sentencing in the Crown Court: Report of an Exploratory Study. University of Oxford Centre for Criminological Research, Occasional Paper No. 10.
Bain, W. (1986) Case Based Reasoning: A Computer Model of Subjective Assessment. PhD Thesis. Department of Computer Science, Yale University.
Bain, W. (1989) ‘Judge’ in Christopher K. Reisbeck and Roger C. Schank (1989) ‘Inside Case-based Reasoning’, New Jersey: Lawrence Erblaum Associates.
Bainbridge, D. (1991) CASE: Computer Assisted Sentencing in Magistrates’ Courts, Paper presented to the BILETA Conference 1991.
Barnett, A., Blumstein, A., Cohen, J., Farrington, D. (1992) Not all Criminal Careers are Equally Valid. Criminology 30(1), 133–147.
Basten, J. (1980) Judicial Accountability: A Proposal for a Judicial Commission. The Australian Quarterly 468–85.
Basten, J. (1995) ‘Should Judges Have Performance Standards?’ Paper Delivered to the 1995 New South Wales Legal Convention.
Baumgartner, M.P. (1994) The Myth of Discretion. In Hawkins, K. (ed.), The Uses of Discretion. Oxford: Oxford Socio-Legal Studies Clarendon Press.
Bench-Capon, T.M.J. (1994) In Defence of Rule-Based Representations for Legal Knowledge-Based Systems, Law, Computers and Artificial Intelligence 1, 15–28.
Bennett, W., Feldman, M. (1981) Reconstructing Reality in the Courtroom. Tavistock Publications.
Boyle, C.K. and Allen, M.J. (1990) Sentencing in Northern Ireland. SLS Publications (NI). Canadian Sentencing Commission (1987) Sentencing Reform: A Canadian Approach.
Chan, J. (1991) A Computerised Sentencing System for New South Wales Courts. Computer Law and Practice 137
Chi, M. (1988) The Nature of Expertise. Lawrence Erblaum Associates.
Corkery, J.M. (1992): The Use of Vignettes in Sentencing Studies of English Magistrates. Interantional Journal of the Sociology of Law 20, 253–270.
Council of Europe (CDPC) (1993) Consistency in Sentencing R (02) 17, October 1993, Strasbourg.
Crombag, H.F., De Wijkerslooth, J.L., and Van Tuyl Van Serooskerken, E.H. (1975) On Solving Legal Problems. Journal of Legal Education 27, 168–201.
Curran, J. and Chambers, G. (1982): Social Enquiry Reports in Scotland. HMSO, Edinburgh.
Doob, A. (1990) Sentencing Aids: Final Report to the Donner Canadian Foundation. Centre of Criminology University of Toronto: Toronto.
Doob, A. and Park, N. (1987) Computerised Sentencing Information for Judges: An Aid to the Sentencing Process Criminal Law Quarterly 30, 54.
Dworkin, R. (1977) Taking Rights Seriously. Harvard University Press.
Edwards, L. and Huntley, J. (1992) Creating a Civil Jurisdiction Adviser. Law, Computers and Artificial Intelligence 1(1), 5–40.
Emerson, R.M. (1995) Holistic Effects in Social Control Decision-Making. In Abel, R. (ed.), The Law and Society Reader. New York: New York University Press.
Ericson, R. (1981) Making Crime: A Study of Detective Work. Toronto, Butterworth.
Ericson, R. (1982) Reproducing Order: A Study of Police Patrol Work. Toronto: University of Toronto Press.
Fitzmaurice, C. and Pease, K. (1986) The Psychology of Judicial Sentencing. Manchester: Manchester University Press.
Fox, R. (1994) The Meaning of Proportionality in Sentencing. Melbourne University Law Reviews 19(3), 489–511, at 510.
Fox, R. and Freiberg, A. (1985) Sentencing: State and Federal Law in Victoria. Oxford University Press.
Freed, ?. (1992) Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers. Yale Law Journal 101(8), 1681.
Giller, H. and Morris, A. (1981) “What Type of Case if This?” Social Workers’ Decisions about Children Who Offend. In Adler, M. and Asquith, S. (eds.), Discretion and Welfare. London: Heinemenan Educational Books.
Greenberg, D. (1991) Modelling Criminal Careers. Criminology 25(1), 17–46.
Gruner, R. (1991) Sentencing Advisor: An Expert Computer System for Federal Sentencing Analyses. Paper presented at BILETA Conference.
Hart, H. (1994) The Concept of Law. Second Edition, Clarendon Press.
Hassett, P. (1993) Can Expert System Technology Contribute to Improved Bail Decisions? Interna tional Journal of Law and Information Technology 2.
Hawkins, K. (1992) The Use of Legal Discretion: Perspectives from Law and Social Science. In Hawkins, K. (ed.) The Uses of Discretion. Oxford: Oxford Socio-Legal Studies Clarendon Press.
Hedderman, C. and Gelsthorpe, L., eds. (1997) Understanding the Sentencing of Women: Home Office Research Study, p. 170. Home Office.
Henham, R. (1997) Criminal Justice and Sentencing Policy. Dartmouth.
Hogarth, J. (1971) Sentencing as a Human Process. Toronto: University of Toronto Press in Association with the Centre of Criminology University of Toronto.
Hogarth, J. (1988) Sentencing Database System: User’s Guide. Vancouver: University of British Columbia.
Hutton N., Paterson A., Tata C, and Wilson J. (1996) A Prototype Sentencing Information System for the High Court of Justiciary: Report of the Study of Feasibility. Edinburgh: Scottish Office Home and Health Department, Central Research Unit.
Hutton, N., Paterson, A., Tata, C, and Wilson, J. (1995) Decision Support for Sentencing in a Common Law Jurisdiction. The Fifth International Conference on Artificial Intelligence and Law: Proceedings of the Conference. Maryland.
Hutton, N. and Tata, C. (1995) Patterns of Custodial Sentencing in the Sheriff Court. Edinburgh: Scottish Office Home and Health Department Central Research Unit.
Hutton, N., Tata, C. and Wilson, J. (1995) Sentencing and Information Technology: Incidental Reform? International Journal of Law and Information Technology 2(3).
Jareborg, N. (1994) The Sweedish Sentencing Law. European Journal on Criminal Policy and Research 2(1).
Jorg, N., Field, S., and Chrisje, B. (1995) Are ‘inquisitorial’ and ‘adversarial’ systems converging?. In Fennell, P., Harding, C, Jorg, N., and Swart, B. (eds.), Criminal Justice in Europe: A Comparative Study. Clarendon Press.
Lawrence, J. (1988) Expertise on the Bench: Modelling Magistrates’ Judicial Decision-Making. In Chi, M., Glaser, R., and Marshall, J. (eds.), The Nature of Expertise. Lawrence Erlburum Associates.
Lempert, R. (1994) Discretion in a Behavioural Perpsective. In Hawkins, K. (eds.) The Uses of Discretion. Clarendon Press. First published 1992.
Lloyd-Bostock, S. (1988) Lawin Practice: Applications of Psychology to Legal Decision-Making and Legal Skills. British Psychological Society/Routledge.
Lovegrove, A. (1989) Judicial Decision Making, Sentencing Policy and Numerical Guidance. New York: Springer-Verlag.
Lovegrove, A. (1997) The Framework of Judicial Sentencing. Cambridge University Press.
Moody, S.R. and Tombs, J. (1982) Prosecution in the Public Interest. Edinburgh: Scottish Academic Press.
Moxon, D. (1988) Sentencing Practice in the Crown Court. Home Office Research Study No. 103, London, HMSO.
Murbach, R. and Nonn, E, (1991) Sentencing by Artificial Intelligence Tools: Some Possibilities and Limitations Paper presented at The Joint Meeting of the Law and Society Association and the Research Committee of the Sociology of Law of the International Sociological Association Amsterdam 1991.
Oskamp, A., Tragter, M., and Groendijk, C. (1995) AI and Law: What about the Future?. Letter to the Editor. Artificial Intelligence and Law 3: 209–215.
Parker, H., Sumner, M., and Jarvis, ?. (1989) Unmasking the Magistrates. Milton Keynes: Open University Press.
Parton, D.A., Hansel, M., and Stratton, J.R. (1991): Measuring Crime Seriousness: Lessons from the National Survey of Crime Severity. The British Journal of Criminology 31, 72–85.
Potas, I., Ash, D., Sagi, M., Cumines, S. and Marsic, N. (1998) Informing the Discretion: The Sentencing Information System of the Judicial Commission of New South Wales. International Journal of Law and Information Technology, 6(2).
Potas, I. (1997) Consistency in Approach to Sentencing: A Description of the Judicial Commission’s Sentencing Information System. Proceedings of the Judicial Decision Support Workshop. Melbourne.
Potas, I. (1991) The Sentencing Information System of New South Wales: Promoting Consistency in Sentencing Through Computerisation. Paper presented to The Commonwealth Magistrates and Judges Association Sydney 1991.
Scottish Office Home Department (June 1994) Firm and Fair: Improving the Delivery of Justice in Scotland. H.M.S.O.
Schild, U.J. (1995) Intelligent Computer Systems for Criminal Sentencing, The Fifth International Conference on Artificial Intelligence and Law: Proceedings of the Conference, Maryland 1995, pp. 229–238.
Shapland, J. (1981), Between Conviction and Sentence: the Process of Mitigation, Routledge &; Kegan Paul.
Shapland, J. (1987) Who Controls Sentencing? Influences on the Sentencer. In Donald C. Pennington and Sally Lloyd-Bostock (eds.), The Psychology of Sentencing: Approaches to Consistency and Disparity. Oxford: Centre for Socio-Legal Studies.
Simon, E. and Gaes, G. (1989) ASSYST — Computer Support for Guideline Sentencing. The Second International Conference on Artificial Intelligence and Law: Proceedings of the Conference, Vancouver 1989, pp. 195–200.
Simon, E., Gaes, G., and Rhodes, W. (1991) ASSYST-The Design and Implementation of Computer Assisted Sentencing. Federal Probation 55, 46.
Spears, D. (1993) Providing Computerised Sentencing Information to Judicial Officers: The New South Wales Experience. Sydney: NSW Judicial Commission.
Sudnow, D. (1964) Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office. Social Problems 12, 255–276.
Tata, C. (1998a) “Neutrality”, “Choice”, and “Ownership” in the Construction, Use, and Adaptation of Judicial Decision Support Systems. International Journal of Law and Information Technology, 6(2).
Tata, C. (1998b) Problematising the “Structure” in Sentencing Discretion. Paper Presented to the Annual Meeting of the Law and Society Association, 2–6 June 1998, Colorado.
Tata, C. (1997) Conceptions and Representations of the Sentencing Decision Process. Journal of Law and Society 24(3), 395–20.
Tata, C. and Hutton, N. (1998) What “Rules” in Sentencing? The International Journal of the Sociology of Law, 26(3).
Tata, C, Hutton, N., Wilson, J., Paterson, A., and Hughson, I. (1997) A Sentencing Information System for the High Court of Justiciary of Scotland: Report of the Study of the First Phase of Implementation and Enhancement. Scottish Courts Administration.
Tata, C, Wilson, J., and Hutton, N. (1996) Representations of Knowledge and Discretionary Decision-Making by Decision-Support Systems: the Case of Judicial Sentencing. The Journal of Information, Law and Technology http://elj.warwick.ac.uk/elj/jilt/artifint/2tata/ > No. 2.
Tata, C, Hutton, N., Wilson, J., Paterson, A., and Hughson, I. (1998) A Sentencing Information System for the High Court of Justiciary of Scotland: Report of the Study of the First Phase of Implementation and Enhancement. (Scottish Courts Administration).
Tito, C. (1987) Artificial Intelligence: Can Computers Understand Why Two Legal Cases are Similar? Computer/Law Journal 7, 409–437.
Tonry, M. (1987) Sentencing Guidelines and Sentencing Commissions: The Second Generation. In Wasik and Pease (eds.) Sentencing Reform: Guidance or Guidelines? Manchester: Manchester University Press.
Tonry, M. (1992) Judges and Sentencing Policy — The American Experience. In Munro and Wasik (eds.), Sentencing, Judicial Discretion and Training. London: Sweet and Maxwell.
Tonry, M. (1993) The Failure of the U.S. Sentencing Commission’s Guidelines. Crime and Delinquency 131.
Tonry, M. (1996) Sentencing Matters. Oxford: Oxford University Press.
Van Duyne, P. (1987): Simple Decision Making. In Pennington, D.C. and Lloyd-Bostock, S. (eds.), The Psychology of Sentencing: Approaches to Consistency and Disparity. Oxford: Centre for Socio-Legal Studies.
Van Noortwijk, K. and De Mulder, R. (1997) The Similarities of Text Documents. Journal of Information, Law, and Technology http://jilt.law.strath.ac.uk/jilt/artifint/97_2noor/noor.htm.
Von Hirsch, A. (1976) Doing Justice: The Choice of Punishments. New York: Hill and Wang.
Von Hirsch, A. (1993) Censure and Sanctions. Oxford: Clarendon Press.
Von Hirsch, A. and Jareborg, N. (1989) Sweden’s Sentencing Statute Enacted. Criminal Law Review 275.
Warner, D. (1990) The Role of Neural Networks in Law Machine Development. Rutgers Computers and Technology Law Journal 16: 129–144.
Wilkins, L., Kress, J., Gottfredson, D., Calpin, J., and Gelman, A. (February 1978) Structuring Guidelines: Structuring Judicial Discretion. Report on the Feasibility Study. U.S. Justice Department.
Zdenkowski, G. (1986) Sentencing: Problems and Responsibility. In Chappell, D. and Wilson, P. (eds.) Australian Criminal Justice System. Butterworths.
Zeleznikow, J. and Hunter, D. (1994) Building Intelligent Legal Information Systems. Computer Law Series 13, Kluwer Law and Taxation Publishers.
Zeleznikow, J. Stranieri, A, and Gawler, M. (1996) Project Report: Split-Up — A Legal Expert System which Determines Property Division upon Divorce. Artificial Intelligence and Law 3, 267–275
Zeleznikow, J. and Stranieri, A. (1997) Modelling Discretion in the Split-Up System. Proceedings of the Workshop on Judicial Decision Support Systems, The Sixth International Conference on Artificial Intelligence and Law. Melbourne.
Author information
Authors and Affiliations
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 1998 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Tata, C. (1998). The Application of Judicial Intelligence and ‘Rules’ to Systems Supporting Discretionary Judicial Decision-Making. In: Sartor, G., Branting, K. (eds) Judicial Applications of Artificial Intelligence. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9010-5_4
Download citation
DOI: https://doi.org/10.1007/978-94-015-9010-5_4
Publisher Name: Springer, Dordrecht
Print ISBN: 978-90-481-5136-3
Online ISBN: 978-94-015-9010-5
eBook Packages: Springer Book Archive