Representations of Knowledge and Discretionary Decision-
Making by Decision-Support Systems : the Case of Judicial
Sentencing
by
Cyrus tata, John N. Wilson and Neil Hutton
(University of Strathclyde)
Date of publication on-line : 31 March 1996
Citation: 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/>
Representations of Knowledge and Discretionary Decision-
Making by Decision-Support Systems : the Case of Judicial
Sentencing
Cyrus Tata, John N. Wilson and Neil Hutton.
University of Strathclyde
Key words : discretionary legal decision-making, decision-support
systems, judicial sentencing
Acknowledgments
We are particularly grateful to Professor Alan Paterson for his
sustained and dedicated commitment to the project which this
article describes. We are also indebted to the contributions of
all High Court Judges, but most especially to The Lord Justice-
Clerk, The Rt. Hon. Lord Ross, The Hon. Lord Sutherland, The Hon.
Lord Penrose and The Rt. Hon. Lord Murray, The Rt. Hon. The Lord
McCluskey, as well as Mr. Eric Cumming and to the Scottish Office
Home and Health Department for its funding of a study, part of
which is discussed here. We are also grateful to Simon Halliday
for his comments on an early draft of this article.
Abstract
This article critically examines approaches to the production of
systems of support for discretionary legal decision-making. It
discusses a project to research and develop a Sentencing
Information System for the High Court in Scotland and examines
the wider theoretical implications of work to produce a system to
support discretionary decision-making.
Briefly placing the Scottish development in the context of world-
wide themes in sentencing reform, the article then focuses on
attempts to produce systems of computer support for sentencing:
both knowledge-based approaches and also database technology. It
then briefly describes the background of the Scottish system and
speculates on the present and future positions of the project.
Perhaps the most important question concerning systems of support
for discretionary decision-making is their ability to impact on
decision behaviour. We argue that although every case is unique
in some sense, it is necessarily possible to compare cases and
therefore to represent them as ‘similar’.
How, then, should this ‘similarity’ be represented ?
Traditionally, representations of similarity have tended to be
informed by ‘the legal-analytical’ paradigm. This privileges
official criminal law offence categories as the starting point
for representation and then ‘adds in’ further information to
describe the case analytically. We argue that systems based on
this paradigm may be limited in their representation of the
decision process. We suggest that these limitations 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.
The Scottish project has possibly provided a glimpse of a more
holistic and schematic approach to representing ‘similarity’.
However, further study may help to provide a more complete
representation of the informal behavioural rules which govern
discretionary decision-making.
Introduction
Is it possible to build a system of computer-support to aid the
discretionary decision-making process ? If so, how can that
process be understood and that understanding be most
appropriately represented ? This article discusses the
application of different conceptual approaches to information
technology to the judicial sentencing process. It discusses a
recent project to produce a prototype Sentencing Information
System (SIS) for the High Court of Justiciary in Scotland and to
study its feasibility. The article proceeds to discuss the
results of the study and prospects for the future. Its prospects
will depend crucially, among other things, on its reception by
judges themselves. The article therefore examines how the
conceptual content of computer programmes intended to support
legal decision-making can increase the likelihood of their
acceptance and usefulness to their Users.
Over the last twenty years, many Western jurisdictions have taken
various steps to reform the sentencing process (Ashworth, 1992b,
Tata, Hutton, Wilson and Paterson, 1995, Hutton and Tata 1995).
The following section sets the Scottish High Court prototype in
the context of international developments.
2 International Reforms in Sentencing
The primary aim of this wave of international reforms has been to
reduce disparity and promote consistency in sentencing (Ashworth,
1992a). Consistency in sentencing requires that like cases are
treated in a similar way and conversely that dissimilar cases
receive different sentences (Hutton, Paterson, Tata, and Wilson,
1995a).
It has been the ‘just deserts’ approach to sentencing which has,
in part, influenced most of the approaches to sentencing reform
(Ashworth 1992a). This approach argues that sentence ought to be
proportionate to the seriousness of the offence and not based on
the character or past conduct of the offender (von Hirsch 1976,
1993). Reforms in Scandinavia have used a narrative form of
guidelines to guide sentencers as to how the principle of desert
should be properly applied (von Hirsch and Jareborg 1989, 1994).
Arguably, the Criminal Justice Act (1991) adopted a similar
approach for England and Wales. The US approach to sentencing
reform was to construct numerical guidelines which specified a
limited range of penalty for particular offence categories
(Wilkins et al 1978). These were introduced into a number of
state jurisdictions, the most well known being the Minnesota
Guidelines (Tonry 1987). U.S.-wide Federal Guidelines were
introduced in 1987. The relative inflexibility of numerical
guidelines considerably reduces the element of judicial
discretion in sentencing and they have thus not been popular
with judges (see Tonry, 1987, 1992 and 1993; Freed 1992; De
Benedictis 1993).
These U.S. guidelines were all formulated by a sentencing
commission or committee appointed by the government for the
purpose. Sentencing commissions have also been formed to provide
advice for governments, e.g. in Canada, the state of Victoria in
Australia and a number of US states (Ashworth 1992b). These have
had a very mixed reception from governments. The Canadian
guidelines have not been implemented while the Victorian
Sentencing Act was passed in 1991.
3 Computer support to aid sentencing decision making.
Computer systems which have been used to support sentencing
reforms include knowledge-based systems, both case-based and rule-
based approaches, and simpler database retrieval systems.
3.1 Knowledge-based approaches
Bench-Capon (1994) and Zelznikow and Hunter (1994) have argued in
favour of the development of computerised representation of legal
rules to assist decision-making. Zelznikow and Hunter (1994) take
the reader through a brief tour of legal theory in relation to
building intelligent information systems. They present a debate
between ‘Legal Positivists’ who argue that law can be represented
by "...a settled body of rules..." (p.63) and ‘Legal Realists’
who take "...a more extreme approach and reject the
categorisation of law as fundamentally about rules" (p.53).
Having acknowledged the centrality of the debate they introduce,
the authors conclude that "...the majority of cases should be
decided on something approaching a positivist approach." However,
this conclusion seems to be more as a result of a pragmatic
preference than of a theoretical argument, (other than to say
that strong legal realism is "...an unlikely conclusion and one
which many would not accept").
We would suggest that this positivistic rule-based approach to
decision-support systems is founded on a restrictive view of the
sentencing process as one which is fundamentally prescribed by
formal rules.1 There appears to be a presumption in the rule-
based approach that ‘rules’ are formal legal rules, rather than
behavioural rules (Hawkins 1992). This presumption ignores the
inter-connection between social and legal processes during
sentencing process. Reliance on such an approach may help to
explain the difficulties which confront the design and
application of current rule-based systems. (See for example,
difficulties reported by Hassett (1993) in producing a ‘Bail
Advisor’).
A hybrid approach involving both rule based and case based
systems has been developed by Bain (1989). The programme begins
with an empty case-library and a handful of heuristics for
deciding sentences when no cases can be applied to a new
situation. After only a few cases, however, it begins to
retrieve ‘remindings’ of its own cases from memory and to modify
the strategies associated with those cases to form new sentences.
The idea of a case based reasoning system unsupported by
heuristics has also been used as a basis for modelling the
sentencing process. Murbach and Nonn (1991) report progress on a
project to develop a sentencing support system for fraud cases in
Canada. Their system provides information about penalties but
also includes information on case factors not included in the
categories of offence used in the penal code but agreed by judges
to be relevant to sentencing. There is thus an attempt to include
information which reflects judicial perceptions of seriousness in
order to make the system more sensitive and thus more useful to
sentencers. Computer technology has been used to assist these
reforms and to encourage greater consistency in sentencing.
ASSYST (Applied Sentencing systems) has been developed by the US
Federal Court system so that criminal justice personnel could
easily compute, record, archive and examine the implications of
the US Sentencing Commission Guidelines (Simon and Gaes 1989,
Simon, Gaes and Rhodes 1991).
Schild (1995) reports work in progress to develop a case-based
advisory system for sentencing. The domain knowledge was elicited
from a senior judge, and the system uses "hierarchical
discrimination trees" in order to retrieve relevant information.
Schild notes that ‘[i]t is obvious that the area of sentencing is
associated with an enormous amount of both common-sense and
domain knowledge.’ However, a model which would include this
knowledge was considered impracticable and so it was therefore
decided to use only the domain knowledge without any additional
‘common-sense knowledge’.(p232)
A part-simple retrieval system, part-expert system approach to
sentencing support has been reported by Bainbridge (1991). The
system focuses on sentencing practice in magistrate courts in
England and Wales and contains components covering sentencing law
and penalty statistics. The sentencing law component is
intended to assist the magistrate by checking that the chosen
sentence complies with relevant sentencing law. This part of
the system is arguably more like an expert-system than a simple
retrieval system, although it only answers the question, 'Is this
sentence legally competent?' rather than, 'What is the
appropriate sentence for this case?'. When a judge has selected
a legally competent sentence, it is then possible to consult the
penalty information section of the system. This shows the
distribution of penalties for the offence in the form of
probability calculations. Information is only available for two
statutory offences of theft and burglary and for only 600 cases
from four magistrate courts.
Database technology has been used in a number of large scale
information systems. Such systems, generally referred to as
'Sentencing Information System', have been implemented in a
variety of jurisdictions and used in practical, day-to-day basis
to support the sentencing process.
3.2 Sentencing Information Systems
A Sentencing Information System provides users with information
about the range of penalties which have been passed by the court
for similar cases in the past. The system allows the judge to
enter certain information into the computer about the case which
he is considering and the range and quantum of penalties passed
by the court for similar cases is displayed.
Formally, a Sentencing Information System is descriptive rather
than prescriptive. That is, it contains no guidance as to how a
sentencer might use this information to help in making the
sentencing decision in a particular case. A Sentencing
Information System (SIS) can display the range of sentences for
the particular combination of offence and offender
characteristics selected. The sentencer will have no guidance as
to what extent and in what direction the appropriate sentence for
the case at hand should vary from the average. This decision is a
matter for the discretionary judgement of the sentencer. However,
the frequency distribution indicates the highest and lowest
sentences previously passed for the type of case at hand. In a
well trodden area it might be assumed that a sentencer would
have to have good reasons for straying outside the upper and
lower limits, although there are no formal reasons why a
sentencer should not choose to do so nor does the SIS restrict
the sentencer’s choice in any way.
Jurisdictions in Canada and Australia have experimented with
Sentencing Information Systems. These are briefly described
below.
3.2.1 Canada
3.2.2 Doob and Park System
One of the earliest systems was designed by Doob and Park in
Canada and it operated for six years in four provinces (British
Columbia, Manitoba, Saskatchewan, Newfoundland) (Doob and Park,
1987). By 1990 only the Saskatchewan system was still in
operation, in the latter stages, using only Court of Appeal
information. Anthony Doob has explained why he thinks judges did
not make sufficient use of the system. There are two main
reasons. First, judges in Canada had little interest in
information about current court practice. They are not accustomed
to using information in this numerical form nor does their legal
tradition give any weight to current sentencing practice. Second,
such authority as exists in sentencing comes from the Court of
Appeal. The Sentencing Information System carried no
institutional authority (Doob 1990).
3.2.3 The British Columbia System
This system operated in British Columbia from 1987 to 1992
(Hogarth, 1988) but is no longer operating. A private
communication with the IT director suggests there are two main
reasons. First, there was insufficient judicial consultation and
involvement, particularly in the early stages of the project.
Judges therefore felt that the information provided by the system
was not helpful to them. Second, the costs of the system,
although not revealed in detail, were very high. it appears that
the cost of data collection and of a very powerful main frame
computer were particularly high. Schild (1995) has suggested that
Hogarth’s system may be subject to criticism because "...the
statistical knowledge embodied...is based on a very small number
of characteristics. This does not suffice to express the actual
complexity of the sentencing process." He also criticises the
structure of system : it quickly runs out of cases since there
are no hierarchies between ‘variables’.
3.2.4 The New South Wales Sentencing Information System
The development of this system began in 1988. It includes
information on penalty statistics, sentencing law and information
about appeal case judgements. The system is administered by the
Judicial Commission of New South Wales. In addition to managing
the SIS the commission is also responsible for judicial
education and training and monitoring judicial conduct. The
commission is chaired by the Chief Justice. One of the main
functions of the Commission is to assist judges to achieve
consistency in sentencing without placing any limits on the
discretion that a court has in determining sentence.
Although there has been no systematic evaluation of the SIS,
reports from the Judicial Commission indicate that the system has
been well received by users and that there has been a steady
growth (at least as measured by the number of ‘log-ins’) in the
use made of the SIS (Potas 1991), (Chan 1991) (Spears 1993).
3.2.5 The Scottish Sentencing Information System
The initiative for this project came from the Lord Justice-
Clerk, the second most senior judge in Scotland, who had seen
the New South Wales system demonstrated in Canada at a Conference
of the Commonwealth of Learning and decided that it might be
useful to have a similar system for the High Court of Justiciary.
The Lord Justice Clerk approached the Law School at the
University of Strathclyde where there was existing relevant
expertise. The Scottish Office provided funding for a feasibility
study which ran from June 1993 to January 1995. The operation
and description of the taxonomic issues and how the resolution of
such issues was approached is documented elsewhere (Hutton, Tata
and Wilson 1995).
After due consideration of the report of the feasibility study,
the Scottish Courts Administration is currently funding (from
November 1995) the first phase in the implementation of the
prototype. This will involve the delivery of the system to up to
thirteen judges and on-going study by the judges of its utility
so as to identify weaknesses and areas needing further
development. This first phase of implementation will also begin
conceptual work on an Appeal Court Judgements Database to be
subsequently incorporated into the SIS.
In its White Paper (SOHHD 1994), the government welcomed the
Sentencing Information System initiative and indicated that if
it was workable and successful, similar systems might be
considered for the lower courts. It would therefore appear that
there is some government support for sentencing information
systems. While the future of the SIS seems to enjoy generally
strong judicial support there are perhaps two broad issues which
will require further attention.
First, unlike the New South Wales SIS, an operational Scottish
SIS may well need to enjoy direct institutional protection.
There does not yet appear to be any long-term plan for the system
to be run by a government body directly responsive to judicial
needs. In New South Wales, on the other hand, the SIS is
administered by the Judicial Commission of New South Wales. In
Scotland, however, the possible absence of a government body with
a direct interest in defending the system from criticism and
resource pressure may leave it vulnerable.
Secondly, given this possible future vulnerability to resource
pressures, it may be difficult to lobby for funding to improve
and expand the system in response to judicial requests for more
or different information. As with any computer system, the SIS
will require to evolve and improve over time. The apparent
ability of the New South Wales system to do this may help to
explain its longevity and apparent success compared with its
North American forebears.
One of the most intriguing questions which will need to be
explored will be the extent to which the introduction of
information technology will change the nature of sentencing
practice. Although there may be no formal requirement for judges
to consult the system and take note of its information, there may
be reasons for expecting that judges may feel informally
encouraged to use the system and indeed that it may significantly
impact on judicial sentencing behaviour. (For further explanation
of this point see Hutton, Tata and Wilson 1995).
4 How can the representations of knowledge enhance the utility of
decision-support systems for sentencers ?
Aside from questions of political support and the relationship
between information systems and judicial culture, a key question
must concern the conceptual character of a system intended to
support decision-making so strongly characterised by formal
discretion.
4.1 Sentencing as a comparative process
The Uniqueness of Individual Cases
As we saw earlier, systems to support sentencing decision-making
tend to be based on the idea that a decision about a current case
can be aided by information about previous decisions for
‘similar’ cases. Of course, the ability to produce a system which
is meaningful to sentencing decision-makers must presuppose the
ability of the system, and those who programme it, to identify
cases as ‘similar’. Is this possible ? It is a judicial axiom of
sentencing that every case is unique and as such each must be
judged on its own facts (Ashworth, Genders, Mansfield, Peay and
Player 1984). Further, it is argued that because each case is
unique it is therefore not possible to compare one case with
another. We have argued elsewhere that this view is untenable
(Hutton, Paterson, Tata and Wilson 1996a). Moreover, the
illogicality of the view asserting that every cases is
incomparable was exposed by Hood (1962) writing over twenty years
ago :
"...[M]agistrates and judges frequently turn to precedent for
their ruling and place particular value on their experience in
sentencing. Now, if this experience is to be of value, then all
cases cannot be unique, they must be comparable at least in some
respects; and even if it is agreed that all cases are unique in
some sense, this cannot be decisive in the practice of
sentencing, for frequently decisions are reached with the aid of
‘experience’." (Hood (1962), p16,).
Although in one sense every case is unique (because each
individual, social situation and context are unique), it is
possible, at least in principle, to compare cases and therefore
to say that some cases are ‘similar’. The critical question,
then, must be: ‘how is ‘similarity to be understood?’ Traditional
academic understanding has largely been informed by ‘legal
analysis’. Attempts to construct systems of computer support for
sentencing decision-making have tended to be rooted in a paradigm
which is primarily legalistic in outlook and analytical in its
thinking. We would argue that systems based on this paradigm
offer at best only a partial understanding and therefore
computerised representation of ‘similarity’.
4.2 The Weakness of the Legal-Analytical Paradigm
What are the characteristics of the ‘Legal-Analytical’ paradigm
as it attempts to represent ‘similarity’ and what limitation do
they have? We address this question below by considering each
aspect of ‘legalism’ and ‘analysis’ in turn.
4.2.1 Legalism
In developing decision-support systems for judicial sentencing,
the starting point for representations of ‘similarity’ has tended
to be a legalistic one (Bainbridge 1991, Gruner 1991, Potas 1991,
Doob 1990). Systems search for ‘like’ cases or representations of
‘like’ cases primarily in terms of official legal convictions.
This is normally the starting point of the search for
Qsimilarity’. However, in designing the Scottish SIS we became
increasingly doubtful of the appropriateness of this approach.
>From our work with judges (Hutton, Paterson, Tata and Wilson
1996a) and previous research with sentencers (Ashworth et al
1984; Hogarth 1971; Hutton and Tata 1995) there was strong reason
to doubt the view that judges think primarily in terms of
classifications represented by official headline categories of
the official criminal law ‘headline’ offence.
Previous research (Fitzmaurice and Pease 1986, Ashworth et al
1984, Hood 1962, Hood 1992, Hutton and Tata 1995), shows that
sentencing is determined by far more than the legal definition of
the offence(s). Judges consider the circumstances surrounding the
commission of offences as important. This point is applicable to
both common law and statutory jurisdiction.
As in other countries where sentencing is conducted in a
predominantly common law jurisdiction, the strict common law
headline offence category often provides little information as to
the seriousness of the offence from the perspective of
sentencing. A sentencer must not only consider the common law
conviction, but also the circumstances of the events surrounding
the commission of the offence. The ‘headline’ offence(s) (for
example, ‘Robbery’, ‘Rape’, ‘Housebreaking’ ‘Theft’ etc.), with
which an offender is charged and convicted may be of limited
relevance in deciding sentence. Very frequently, the common law
headline conviction does not provide a sentencer with sufficient
information about the circumstances surrounding the commission of
the offence.
If common law offence classifications provide insufficient
information about the circumstances of an offence and its
attendant seriousness, it might be thought that statutory based
offences provide sufficient precision for the consideration of
sentence. After all, could the organisation of information not
simply replicate all offences as they appear in Acts of
Parliament? Aside from the practical considerations of operating
such a system, there is a conceptual difficulty. While the
creation of offences on the statute books are used to charge
persons, they may often of limited assistance when judges
consider sentence. It is not clear how to organise statutory
offences. (For further elaboration of this point, see Hutton,
Paterson, Tata and Wilson 1996).
Both our knowledge of the empirical literature on sentencing
(Fitzmaurice and Pease 1986, Ashworth et al 1984, Wilkins et al
1978) and consultation with judges strongly suggested that the
only sensible course of action would be to arrange offence
information in a way which is relevant to the purpose of
sentencing. This might consequently mean that the arrangements of
offences would not necessarily reflect the divisions within the
criminal law.
Thus the assumption that a system’s taxonomy should begin with
the official criminal law headline offence category is very
doubtful. Rather, the single most important criterion which
judges consider is not the official criminal offence category,
but its relative seriousness (Wilkins et al 1978, Fitzmaurice and
Pease 1986, Hutton and Tata 1995). Although decision-support
systems for sentencing have recognised the need to incorporate
information relating to offence seriousness, the organisation of
that information has still tended to priviledge a legalistic
starting point.
4.2.2 Analysis
While representations of similarity have tended to assume a
formal legalistic starting point, there has been a recognition
that there needs to be some account taken of ‘aggravating and
mitigating factors’ which describe the seriousness of the
headline conviction. Typically, having selected the ‘appropriate’
criminal law classification the judge is then invited to add in
standard aggravating or mitigating factors (Chan 1991; Hogarth
1988; Murbach and Nonn 1991). What is striking about this
approach is the additive and analytical nature of the
representation of similarity. We would suggest that this
analytical process of abstracting additive ‘factors’ from the
whole case is an artificial representation of similarity. The
abstraction of independent factors which purport to describe
seriousness denies the relational meaning of information in a
case. It assumes that a case can be meaningfully fragmented into
discrete and abstract individual factors which can be analysed as
if they each have a power independent of each other over the
decision process. However, ‘aggravating and mitigating factors’
only make practical sense to the sentencer in relation to each
other and to the whole case (Shapland 1981).
As an illustration, let us take one issue which has received
surprisingly little attention : cases where an offender is
convicted of more than one charge. The legal-analytical approach
would try to record each conviction separately, or, just one
‘main’ conviction. However, this does not appear to be they way
that sentencers tend to think about cases (Hutton, Paterson,
Tata, and Wilson 1995). In considering sentence, judges do not
seem to think about each conviction in a multi-charge indictment
in isolation from each other and from the circumstances of the
commission of the offences. Rather, they tend to view the case
as a whole incident or narrative of events (Alschuler 1991;
Parton, Hansel, and Stratton 1991). Therefore, in attempting to
reveal the process of the decision-making of sentencers,
empirical research has used sentencing vignettes (Ashworth et al
1984, Corkery 1992) rather than necessarily relying on criminal
law classifications which are necessarily limited in the relevant
information which they can offer the sentencer.
While the legal-analytical way of representing ‘similarity’ of
cases for the purposes of sentencing may be limited, is there a
possible alternative conception ? Below we suggest a possible
alternative.
4.3 The need for a more schematic and holistic representation of
‘similarity’
Judges frequently turn to the cumulative and evolved wisdom of
judicial experience represented by precedent for their decisions
and also place particular emphasis on their personal experience.
This ‘experience’ helps judges to interpret and schematise the
mass of information with which they are presented. In developing
this argument, let us consider research into discretionary legal
decision-making more generally.
It has been established by cognitive psychology that humans are
limited processors of information. From his field experimental
research into the psychology of decision-making in criminal
sentencing, van Duyne (1987) found that despite the considerable
discretion which it afforded, prosecutorial decision-making could
be characterised as "...one dimensional: the Prosecutor selected
out of the total information on the case only those aspects which
were consistent with a particular ‘dimension’ (e.g.
‘professional’, ‘social misfit’ or rehabilitation) and fitted
these into simple conceptual schema." (At p.147). Although the
prosecutor may make a few changes, the decision process remains
basically the same. Giller and Morris (1981) found that social
workers use ‘operational philosophies’ (the means by which
professional ideologies are mediated through the demands of
practice). "Having located the moral character of the case, the
social workers were able to respond with a repertoire of
provisions which routinely met the case as portrayed. In this
way, social work with offenders became ordered and rational and a
work priority was established. Decisions were not ‘made’; they
emerged as natural logical, even inevitable, responses to the
social worker’s interpretation of the case. But these
interpretations were part of a dialectic. What ‘explained’ the
moral character of the case also provided evidence of its
nature." [pp 79 - 80]. This finding is also confirmed by
research into problem-solving by other professionals, such as
doctors who have to make diagnoses. For example, Elstein et al
(1978) found that doctors appeared to do a simpler job than they
imagined, making use of simple conceptual schema. Van Duyne
(1987) concludes that the results from his study cast some doubt
on the claim that,
"...sentencing is a highly complex process solely directed to
‘unique’ decisions in ‘unique’ cases. Without suggesting that the
job of judges is just a matter of quick guesswork and routine,
gilded with pomp and ceremony, I would like to state that
judicial decision making is comparable to other kinds of open
problem solving2 such as the grading of works of art by a viewing
committee or the marking of an essay by a teacher. If sentencing
is difficult, it is because of its uncertainty, not because of
its complexity...In problem solving, [it is] necessary to
restrict the information to one manageable dimension in order to
avoid overload and uncertainty (Nesisser 1976). There is no
reason to assume that judges and prosecutors are a complex
subdivision of the human race deserving a theory of their own."
(pp 151-152).
The supposed model that decisions are in practice taken through a
legal-analytical process characterised by deductive linear
reasoning is doubtful. Rather like other problem-solvers, lawyers
and judges make use of experience to help them to schematise new
cases. For example, Crombag, Wijkerslooth and van Serooskerken
(1975) asked experienced legal problem-solvers to think aloud
while solving a concrete problem. They found that,
"[t]he most striking result was that what was said while thinking
aloud created a rather chaotic and unsystematic impression. Often
a person seemed to have a solution, although a provisional one,
at an early stage for which he subsequently tried to find
supporting arguments. Moreover, during the reasoning process, the
subject did not seem to complete one part after another, but
rather to jump wildly back and forth" (p.169).
Crombag, Wijkerslooth and Serooskerken argue that skilled legal
problem solvers are like other skilled problem-solvers in that
they tend to have a provisional solution in place early and to
work backwards. Curiously, however, Crombag, Wijkerslooth and
Serooskerken describe these results as "disappointing"(p.169).
Had they, perhaps, hoped that their experienced legal problem-
solvers might demonstrate a more legal-analytical process
displaying the supposed virtues of linear reasoning derived from
first principles ?
There is perhaps further reason to suppose that judges may not be
very different from other experienced problem-solvers in coming
to a broad view and then finding reasons to justify it. The
background experience of most judges in most adversarial law
jurisdictions is a career as lawyer. One of the main problems
which the lawyer has to solve routinely is to try to achieve a
favourable result for his client, (or, as in the case of
advocates for his solicitor’s client). The instrumentally-
rational craft of lawyering demands the location, understanding,
interpretation and marshaling of information towards a specific
goal. It may be reasonable to suppose that that the experience of
solving problems in this practically efficient way continues to
be useful to the lawyer who finds himself elevated to the bench.
After all few, if any, common law jurisdictions require judges to
begin the sentencing process from a process of pure legal-
analysis. Rather, judges are encouraged to use their practical
career experience in coming to a decision. As Ashworth et al
(1984) observe from their interviews with judges: "Most judges
described [the sentencing decision] as an instinctive process,
using such terms as ‘instinct’, ‘experience’, ‘hunch’ and
‘feeling’". The giving of publicly-declared reasons for a
decision tend to be couched in legal analytical terms. Has this
more to do with the necessity to fulfill a popularly-held
conception of justice than a revelation of the stream of
consciousness in the decision process? "If [official] reasons
[for decisions] have a place in court, it is because they are
defensible, not because they are true." (Fitzmaurice and Pease,
p.45).
Therefore, a more schematic and holistic approach, (which the
Scottish SIS has labelled as ‘The Modified Approach’- see Hutton,
Tata and Wilson 1995), attempts to classify different types of
criminal conduct exclusively from the perspective of sentencing.
In the shape of this more schematic-holistic approach there may
be the ability for the SIS to more accurately capture the
practical nature of legal problem-solving than linear analytical
legal theory has supposed. The idea behind this approach is to
attempt to derive classifications from the mental schema around
which judges, like all decision-makers, tend to operate (van
Duyne 1987). Thus, rather than being more simplistic than strict
criminal law classifications, this approach may aggregate or
split legal constructs.
4.4 Is the schematic-holistic approach simplistic ?
It might be objected that the notion of a computer system which
retrieves cases on the basis of a very small number of selections
is too crude. Since it does not rely on official criminal law
categories as a necessary starting point, it might be argued that
such an approach overly-simplifies the intricate knowledge
represented in each case by the criminal law. The attempt to
produce such a typological representation of information about
offences may be thought to be overly simple since the very idea
of ‘types’ of cases denies the delicate and subtle complexities
of the ‘knowledge’ represented by the criminal law. However, to
make such an argument is to lose sight of the fact that this
officially defined ‘knowledge’, or ‘reality’ is itself
constructed for a particular purpose: securing convictions and
acquittals. All criminal convictions are themselves typologies
(Sudnow, 1964). Categories of criminal convictions do not, and
cannot, reflect the full precise occurrences of ‘what happened’
during a criminal incident or series of related incidents.
Rather, the criminal conviction for which a person may be
sentenced is necessarily the result of a simplified and
normalised representation of events. (Shapland 1987, Curran and
Chambers 1982, Giller and Morris 1981).
Let us take just one point in the criminal process as an example:
the drafting of charges by the prosecution. Charges are drafted
in a variety of ways which have the effect of continuing to
standardise and normalise reports of relatively complex human
behaviour. Charges are "...drafted in a standard way commonly
referred to by [prosecuting lawyers] as a style...[and it is
a]...process of assimilating prosecutorial norms and rendering
the unfamiliar familiar..."(Moody and Tombs, 1982 pp. 53-54).
Both Shapland (1981) and Ashworth et al (1984) suggest that what
legal rhetoric refers to as the ‘facts of the case’ should not
properly be regarded as ‘facts’ but as "...constructions of the
circumstances forming the offence, stemming from the
constructions made by the police (themselves very much negotiable
and influenced by the individual views of detectives and the
wishes of victims and witnesses) (Ericson 1981, Ericson 1982)."
(Shapland 1987). This ‘information throughput’ model, reveals
that the information with which a sentencer is presented has
already been pragmatically negotiated and refracted through a
series of legal and oragnisational lenses. It can never provide a
notionally objective and factual account of human behaviour, but
is necessarily a pragmatically constructed representation of it.
The nature of criminal events and criminals may be infinitely
unique but the nature of their legal representations from which a
sentencer must make a decision are necessarily finite, typical
and schematic. As an approach which is specifically designed for
the purpose of classifying information from the exclusive
perspective of sentencing, it may be a more sensitive taxonomic
tool than that designed by the criminal law and the addition of
abstracted ‘factors’.
The Scottish SIS also employs a ‘Principal Offence Approach’.
This approaches the retrieval of information about a case
involving more than one conviction by beginning with the most
serious (or principal) offence and then adding in further
information (including further convictions) about the offence-
related circumstance of the case This has tended to be a normal
way of approaching the building of an SIS (Hutton, Tata and
Wilson 1995). Although this approach does not necessarily begin
from a strictly legalistic starting point, it is fundamentally
analytical in nature. Although it has may attempt to overcome the
question of multiple convictions by positing a single offence as
the most serious it then ‘adds in’ information characterising
that offence. The Modified Approach on the other hand perhaps has
begun to suggest that it is possible to represent the schematic
and holistic process of discretionary decision-making The
Scottish SIS project has only scratched the surface of the kind
of questions which research needs to explore if it is to be the
basis of decision-support systems. Indeed, if, as we have
suggested, a schematic-holistic approach may fit more closely
with the reality of discretionary (legal) decision-making than
traditional legal analysis, then the development of the Scottish
SIS will itself have to explore these research questions further.
4.5 Is a schematic-holistic approach open to modelling by a
computer ?
Judges stress their treatment of cases as a ‘whole’ and the
‘feel’ for individual cases. There has been judicial resistance
to the attempt to represent sentencing according to some
mathematical model associated with the addition and subtraction
of ‘independent’ ‘factors’(Lovegrove 1989, Kapardis 1987, Wilkins
et al 1978). Does this mean that the schematic-holistic approach
which has been suggested is too informal, fluid and intangible to
be modelled by a computer ?
In trying to answer the question of whether computers can
understand legal reasoning, Tito (1987) succinctly states that,
"[c]omputers can only do what humans program them to do".
However, Tito presents two views of how lawyers decide : "[Do
lawyers]...apply rules to decide when two situations are similar
within a legal context? Or, do lawyers just get a ‘hunch’ or have
a flash of insight that alerts them to similarities?"[original
emphasis retained](p.411) Tito presents the latter as "ruleless"
and therefore not amenable to understanding by a computer because
they are not understandable to humans. However, we would suggest
that it is possible to argue and that the Scottish SIS project
has begun to demonstrate that legal decision-making may be both
felt to be based on an ‘instinctive hunch’ and amenable to rules.
Like other legal-analysts, Tito’s conception of ‘rules’ seems to
ignore the possibility of non-legal rules of behaviour (Hawkins
1992). However, legal decision-making can be both strongly
characterised by formal discretion and also produce decisions
that are patterned, predictable and comprehensible (Baumgartner
1992). Thus, any model of sentencing decision-making on which
decision-support system is based should attempt to seriously
study informal behavioural rules. We have suggested that this may
uncover a more holistic, schematic model rather than a legal-
analytical one.
Thus, it may not be the idea itself of a computer model of
decision-making based on some notion of ‘rules’ that presents a
difficulty, but the normally assumed interpretation and
representation of ‘rules’ as formal canon. Further research
examining informal behavioural processes and patterns, and their
inter-relationship with the formal context, is more likely to
help to understand the ‘rules’ of discretionary decision-making.
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Cyrus Tata is the Research Officer at the Centre for Law,
Computers and Technology, Law School, University of Strathclyde.
John N. Wilson is a Lecturer at the Department of Computer
Science, University of Strathclyde.
Neil Hutton is a Senior Lecturer at the Centre for Law, Computers
and Technology, Law School, University of Strathclyde.
Further information:
Cyrus Tata
Centre for Law, Computers and Technology, Law School, University
of Strathclyde, Glasgow, G4 ORQ. Telephone: 0141 552 4400. Fax :
0141 553 1546. E-Mail : cyrus@law.strath.ac.uk
John N. Wilson
Department of Computer Science, University of Strathclyde,
Glasgow, G4 ORQ. Telephone: 0141 552 4400. Fax : 0141 552 5330. E-
Mail : jnw@cs.strath.ac.uk
Neil Hutton
Centre for Law, Computers and Technology, Law School, University
of Strathclyde, Glasgow, G4 ORQ. Telephone: 0141 552 4400. Fax :
0141 553 1546. E-Mail : neil@law.strath.ac.uk
_______________________________
1 Hutton (1995) has argued that the sentencing decision is
characteristically substantive and irrational; as opposed to
formal and rational.
2 An ‘open problem’ is characterised as one where the
problem-solver cannot objectively and irrefutably determine
whether his or her solution is the correct one.