Culture, conscience of guilt and sentencing

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

Abstract

This paper presents findings from two focus groups and 30 semi-structured interviews with magistrates and a literature review on culture, conscience of guilt and sentencing. In sentencing, judges have the difficult task of making an assessment of the offender's person, for example his conscience of guilt. This assessment is even more difficult when the offender and the judge have different cultural backgrounds. The literature review shows that in case of cultural differences, thinking errors of judges can result in a wrong assessment of the offender's person, and more specifically his conscience of guilt (‘demeanour gap in a cross-racial assessment’, ‘fundamental attribution error’ and ‘racial empathy gap’).

This paper examines how Belgian magistrates deal with offenders from different cultural backgrounds and to what extent these differences affects sentencing decisions. The results show that a lot of magistrates are aware that cultural differences might influence their decisions. They confirm that it complicates the offender assessment. How judges take these cultural differences into account in sentencing is less clear. For example, some judges try to be culturally sensitive. As a result, offenders, even without conscience of guilt due to a different cultural norms and values framework, sometimes still receive a lenient punishment. Other judges do not take this into account or even see in this a reason to punish more severely (e.g. no alternative punishment is deemed adequate). The paper also provides solutions to improve the difficult assessment of offenders from different cultural backgrounds.

Authors

• Ellen Vandennieuwenhuysen, University of Antwerp

• Maartje Verdickt, University of Antwerp