“Law all the way down”? A study about non-standardized, extra-legal parameters in sentencing behavior

• In Event: Sentencing 2. Legal and Extra-Legal Considerations in Judicial Decisonmaking

Abstract

Iudex non calculat: judicial decisions cannot be a result of rigid, formulaic calculations. Rather, judgments are the outcome of a situation-appropriate exercise of discretion in a contingent practice (Nierhauve, 2016). Although this discretion is bound by legal requirements, prevailing opinion in Austria asserts that a subjective component should and will persist (Tipold, 2016). Against this backdrop empirical studies show significant differences in Austrian sentencing practices between the East and West (Grafl & Haider, 2018) disclosing the breadth of discretionary powers while shedding light on opaque practices. These findings indicate the necessary acknowledgment of non-standardized, extra-legal parameters in decision-making as a part of human behavior. Two facets that contribute to non-transparent, not-objectifiable, unverifiable sentencing decisions particularly pique our interest (1) legislative: aspects in substantive and procedural law (2) executive: aspects of legal application. The present study delves into this "black box" of sentencing processes examining the relevance of non-standardized considerations in Austrian practices through a mixed-methods approach.

Authors

• Nina Kaiser, Hans Gross Centre for Interdisciplinary Criminal Sciences (Institute of Criminal Law, Criminal Procedural Law and Criminology, University of Graz, Austria)

• Ida Leibetseder, Hans Gross Centre for Interdisciplinary Criminal Sciences (Institute of Criminal Law, Criminal Procedural Law and Criminology, University of Graz, Austria)