In December 2018, Dr Ian Marder published a new article in Criminology & Criminal Justice, the official journal of the British Society of Criminology, entitled: ‘Nudge the judge? Theorizing the interaction between heuristics, sentencing guidelines and sentence clustering’. In this paper, Dr Marder and his co-author (Dr Jose Pina-Sanchez, University of Leeds) compare sentencing guidelines from two jurisdictions (Minnesota, and England and Wales). Using literature from the decision sciences, they explore how different guideline formats and details might act to exacerbate or mitigate the influence of cognitive biases on the sentencing process. They conclude that ‘nudge theory’ could be applied to guideline design in order to promote individualisation, proportionality and other important sentencing principles.
The article is one in a series of papers on sentencing guidelines co-authored by Dr Marder, Dr Pina Sanchez and other colleagues. One previous article, published in the Criminal Law Review earlier in 2018 and first-authored by Prof. Julian Roberts (University of Oxford), sought to measure sentence clustering – a phenomenon whereby a significant proportion of sentences are concentrated around a small number of outcomes – in England and Wales. This research found that sentence clustering was significant, with five unique sentences (1 year, 1.5 years, 2 years and 6 and 8 months) accounting for almost 40% of over 6000 assault cases in which the perpetrator was sentenced to immediate custody. They also found that clustering decreased following the introduction of the new ‘step-sequence’ model of sentencing guidelines on which all guidelines in that jurisdiction are now based. The paper is entitled: ‘Individualisation at sentencing: the effect of guidelines and “preferred” numbers’.
In December 2018, a further article, with Dr Marder as a co-author, was accepted for publication by the British Journal of Criminology, entitled: ‘Have the England and Wales guidelines influenced sentence severity? New evidence using a scale of sentence severity and time-series analyses’. This, too, involved quantitative research on the impact of sentencing guidelines in England and Wales. The authors surveyed judges to develop a new scale of sentence severity, enabling the comparison of sentences measured in different units (e.g. days in prison, hours of community service, monetary fines, etc.). The scale was used to estimate changes over time in sentence severity for six offence categories, indicating that increases in severity may not have been linked to the introduction of sentencing guidelines for four of the six offence categories.
Dr Marder’s research on sentencing guidelines is ongoing, with future papers set to explore what progressive sentencing guidelines might look like and to compare levels of sentence clustering in different jurisdictions. This research will inform ongoing debates here in Ireland as to whether or not sentencing guidelines should be introduced. Alongside his research, he teaches classes on sentencing to first- and fourth-year undergraduates at Maynooth University.