Cumulative Disadvantage of Judicial Harshness: The Effect of Previous Harsh Sentences at Sentencing

Abstract

Sentencing disparities are often conceptualized as a static problem in which one judge imposes a harsher sentence than another would impose in the same or a similar case. However, less is known about the impact of sentencing disparities on subsequent sentencing decisions. We argue that most sentencing rationales imply that a previously harsh sentence—even if unwarranted—leads to a harsher sentence in the subsequent case of the same offender. To test this effect, we conduct four vignette experiments with judges and public prosecutors in the Netherlands and the Czech Republic. In one experiment, an offender who had previously been excessively incarcerated was 20 percentage points (49 %) more likely to be incarcerated again. Pooling the data from the three remaining experiments, we find that doubling the initial prison sentence increased the length of the subsequent prison sentence by 0.62 standard deviations. Our findings suggest that sentencing disparities persist and compound over an offender’s criminal career, generating cumulative disadvantage at sentencing.