Fuzzy sentencing: can lay judges beat the computer?

This came out as a coda to a Yomiuri report on the first lay judge trial:

The Supreme Court has introduced a system for searching past sentences handed down for reference when determining appropriate punishments. The use of this system is the focus of considerable attention.

Terminals installed in district courts and their branches across the nation allow data to be retrieved on about 2,300 sentences handed down since April last year. The data are organized into 10 categories, such as whether the crime was premeditated and the types of weapons used. By entering information via a terminal, similar cases and a range of appropriate punishments are displayed in a bar-chart format. Prosecutors and lawyers also can access the system. […]

The Supreme Court’s position on the use of the search results is that they “do not act as a restraint on sentencing, but rather generate material for further discussion.”

Though the information may help lay judges hold active discussions about an appropriate punishment, it may also prevent sentences being handed down that differ widely from similar cases.

Two immediate thoughts:

  1. This highlights yet another distinction between American jurors and Japanese lay judges. In the US, jurors don’t get involved in sentencing at all; that’s left to the judge. In fact, jurors are usually not allowed to know what the punishment is, lest it interfere with their judgment of the facts.
  2. This is a hell of a way to impose sentencing guidelines–basically sentencing by bureaucratic inertia.

To be clear, I think that the opposite extreme can be ridiculous. By “the opposite extreme,” I mean the U.S. Federal Sentencing Guidelines. This is a point system which binds judges to a narrow range of possible sentences based on facts which have been proven in the case–the nature of the offense, the aggravating and mitigating factors present, and the criminal history of the defendant. It’s kind of like doing your taxes: you have income and deductions and a variety of funky calculations to complete. And like tax returns, there is software to do all the calculating, which is worth a try to get a feel for the system.

There are several motivations behind reducing the judge’s discretion. One is to minimize discrimination in sentencing (though if you play with the online calculator, you will find that crack dealers really do get much worse sentences than coke dealers; also note that this is a concept which would probably fall upon deaf ears in the Japanese Diet). Another is to keep convicts from appealing the propriety of their sentences, which is a major administrative burden on appellate courts even when relatively clear rules are in place. Yet another (which would probably get the highest popular approval rating) is to prevent judges from giving lenient sentences to egregious offenders out of emotional pity.

Still, there is something which seems inherently wrong about judging by computer: the person in the defendant’s seat is a human being, and if the system is supposed to somehow “correct” them, some more serious consideration of their personal state by human eyes is probably necessary. The Federal Guidelines are good at keeping people in jail but not particularly good at giving them a responsible future.

Is the new Japanese method better? Maybe. The problem I see is that it could perpetuate the common practice in Japan of looking to the status quo for guidance, even when it clearly isn’t binding.

The lay judges seem to have avoided that trap in their first deployment. In the first lay judge trial, which was decided this afternoon, the pro-am bench handed down a guilty verdict and a sentence of 15 years, slightly less than what the prosecutors wanted (16 years) and well outside the range of past sentences dug up by the defense lawyer (3 to 10 years). So there’s some evidence of critical thinking in this new system, although it’s hard to guess what might happen in future cases.

20 thoughts on “Fuzzy sentencing: can lay judges beat the computer?”

  1. Playing with the terrorism button on that calculator is pretty interesting. Planning on selling some pot? You’re only looking at a $500 fine. But if you’re selling it to fund terrorism then it jumps to a whopping $17,000.

  2. My gut feeling is that average Japanese jurors would be too soft, not too hard and that more information would be better.

    I think that 15 is a bit light in the first case as well. People who get pissed off about a pet bottle and stab someone a half dozen times… that’s what we have jails for.

  3. Yet another (which would probably get the highest popular approval rating) is to prevent judges from giving lenient sentences to egregious offenders out of emotional pity.

    My feeling is similar to M-Bone’s in that most jurors are likely to be soft, but I think part of this is that they don’t want to feel directly responsible for someone else’s punishment (that is not to say that they don’t want to see someone else punished).
    The way around that is probably to give them blinders similar to those of the US jurors, and not have them know about the punishment.

    However, I am neither a psychologist nor a lawyer, but a petty banker, and so part of me wants to see how lay judges react to what are essentially prices — indications with embedded information, meant to provide the recipient with a signal. The more cases there are, the more information the computer receives, and hopefully the less fuzzy things become. It’s not an exact parallel, but enjoy the comparison nonetheless.

    Somewhere, someone is writing a graduate paper on Hayek and the Japanese lay judge system…

  4. I presented that as a “gut feeling”, but I should add that it is also the most common criticism in the Japanese press and the focus of protests by “victim’s rights” groups.

  5. Without the Federal Sentencing Guidelines, Congress would be robbed of its ability to legislate how judges mete out punishment.

    I sometimes wonder how many of the federal mandatory minimum sentences were originally part of the bill (or heavily debated and then written in) versus tacked on by one or a few individuals late in the process?

  6. In the US, if enough people though the punishment was too lenient, the state could always bring charges as, e.g., Terry Nichols.

  7. Re Stevicus’s comment at 9:34:

    First of all, the guidelines are not set by Congress. There is a separate commission of judges and attorneys, appointed by the President with Senate confirmation, which makes the guidelines.

    Before they introduced the guidelines, the law simply said “If you rob someone, you get 1-5 years and pay $25,000 to $100,000.” It was basically just like the current situation in Japan. So Congress did have control over the general limits, but it was only setting maximums and minimums. This is still how it works in many US state courts.

    And you have the right idea about the evolution of these rules: many provisions, like the terrorism enhancement that Ben pointed out, were tacked on over time.

  8. Isn’t giving Congress any control at all a violation of the separation of powers thing?

  9. Your title should have been “Fuzzy sentencing meets fuzzy blogging, or, how to build a straw man out of nothing much at all.”
    I suspect (indeed, hope) that you know perfectly well that your remarks about “judging by computer” are nonsense, simply because there is no such thng, either in the U.S. or in Japan. Are you really not aware of what the word “guidelines” means (hint: it doesn’t mean hard-and-fast rules), or are you hoping that none of us notices the following caveats at sentencing.us: “Judges may impose sentences outside the guidelines. This site ignores statutory maximum sentences”?
    A pity, as the saibanin seido is a unique and fascinating experiment, and yet, like the mainstream media, you can’t even take the trouble to translate saibanin carefully (they’re not judges, they’re assessors).

  10. Fanboy: Skipping ahead to the third paragraph (since the notion of arguing against a straw man against a purported straw man is way too “meta” for my peanut brain to handle), “assessor” is a cruddy translation, simply because it can mean anything. By way of illustration, Wikipedia has five articles about different kinds of “assessors,” and if you look at the article pertaining to “legal” assessors you’ll find that the title means wildly different things in different countries. It’s true that saibanin are not judges, but within the bounds of the courtroom, they are functionally almost the same. (The linguistic distinction is slight in the original Japanese as well: saibanin versus saibankan.)

  11. From a quick look around google, articles on German law seem to use “lay judge” and “lay assessor” interchangeably. I think that the German system is the one the saibanin system is most closely modeled on. (I’m confused on what makes it a “unique” experiment).

  12. I don’t think using the term “lay judges” is lazy because that’s what the justice ministry calls it. That’s been the term ever since the start of the system began to grow closer. Insisting they be called “assessors” is asking too much. Really, your complaints should be directed at the NYT who called them “jurors” throughout its most recent article on the first trial.


  13. This sentence describing the trial is ridiculous. Try reading it aloud:

    “Mr. Fujii had pleaded guilty, saying he attacked the woman after she knocked down bottles of water he had placed around his house to ward off cats, according to local news reports.”

    It sounds like the worst episode of Law and Order ever.

  14. The lay judge system might mean that “Law and Order: Tokyo” is finally dramatic enough to be a possible TV series.

  15. While we’re on the topic of Tokyo courtrooms, for all of you who want a five hour crash course on the Tokyo War Crimes Tribunal just in time for August 15th and all the hullabaloo over at Yasukuni, try renting Masaki Kobayashi’s 東京裁判. I found it dry, but chock full of fascinating information.

    Just finished watching it yesterday. Have a dictionary and some snacks handy.

  16. I saw a dramatization on TV the other day. It involved a young man who pleaded guilty to a murder because he felt bad for the victim’s family. The brave lay juror protagonist had to carefully go through the evidence to prove–to a defendant who was pleading guilty–that he was innocent. Horrible stuff.

  17. I’ll second that on Tokyo Saiban. Also Kobayashi’s Kabe Atsuki Heya about the class Bs. Beats the SMAP version.

  18. So from what I understand, the accused is appealing his 15-year sentence on the grounds that it is unfair.
    And he is also complaining that the makeup of the jury was disadvantageous to him, in that there were 5 women to 1 man, and they were mostly younger people.

    I don’t understand, he pleaded guilty, right? Did he want a more lenient sentence?

    Is it up to the authorities to decide if he gets a 2nd trial or not?
    If so, it will be without saibanin 🙂

    Somehow, I thought all along that he would appeal his eventual sentence on the grounds that the use of the jury was somehow unfair, it being the first one and all.

    I also have a feeling that a large number of Japanese will sympathize with his claims. The media made a rather big point out of the fact that 5 of the jurors were women.
    I think a lot of Japanese men would think “if I ever committed a crime, I wouldn’t want to be judged by a majority of women, but by people of my own gender and around my own age).

    I’m interested to see what will happen. I have a feeling that the powers that be will not want to see the first saibanin saiban lose face by going to appeal on the grounds of the makeup of the jury. So if possible they will throw his appeal out.

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