The Peter Parker Problem
29 Pages Posted: 7 Mar 2020
Date Written: January 10, 2020
Sandy Mayson, in her article "Dangerous Defendants," points out the ways in which pretrial detention violates the parity principle-treating those of like risk alike. There is no justification for the preventative detention of arrestees that would not also apply to those of a similar risk level at large. In other words, merely having an arrestee in custody does not logically change our analysis of the risk they present or what we should do with them.
But what if these views are psychological, not actuarial? What if different decisions about these populations (and the differences in how we view them) are not based in different assessments of risk, but about the psychological heuristics we use to analyze them? In this paper, I explore the possibility that counterfactuals-the "if only I had" scenarios that create an alternative universe where tragedy is avoided-drive decisionmaking without our being aware of it. The human tendency to desire certainty and simplicity may help explain why our default seems to be to keep someone locked up, "just in case"-and why this desire is resistant to information and argument.
This Article adds an important dimension to the ongoing debates about whether judicial discretion or actuarial tools should govern pretrial release. Judicial discretion may be biased towards incapacitation by operating on the "gut level" of psychology-even if these decisions result in suboptimality from a cost-benefit perspective. It adds an additional perspective to the existing literature on the political economy of headline-grabbing crimes (the "Willie Horton" effect). The insights from pretrial release also apply more generally to a host of similar problems, including parole release, executive clemency, diversion programs, and removal of children from potentially abusive parents, and suggest that policymakers and reformers be cognizant of the way in which current criminal justice thinking is short-sighted, overly reactive, and biased towards incapacitation. By applying theories of the counterfactual proposed by Roese and other behavioral psychologists to regret-minimization problems, the Article provides an explanation for why, even when regulations change, judicial decisions to release may remain low. It suggests that experimental research specifically targeting judicial counterfactual thinking should take place.
Keywords: bail, pretrial, risk assessment, actuarial tools, criminal law, detention, release
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