Judicial Stereotyping of Essential Characteristics

Judicial behavior in sentencing still remains a mystery and has little ties to theory (Reference Rachlinski and WistrichRachlinski and Wistrich 2017). Yet research suggests that certain offender characteristics impact sentencing decisions through how judges evaluate blameworthiness, community protection, and bureaucratic constraints, particularly relying on the first two criteria (Reference HartleyHartley et al. 2007). Blameworthiness reflects the retributivist approach that punishment should fit the crime if an offender is perceived to be responsible for his actions; community protection reflects the utilitarian sentencing goals of incapacitation, deterrence, and sometimes rehabilitation in which sentencing protects society by preventing future dangerousness (Reference SteffensmeierSteffensmeier et al. 1998). When assessing these criteria, judges seldom have complete information to make fully informed decisions and often develop unconscious “patterned responses” of stereotyping toward offender characteristics to aid in their evaluations of dangerousness and blameworthiness (Reference AlbonettiAlbonetti 1991). Ultimately, “automatic biases” influence a wide array of judicial decisions (Reference LevinsonLevinson et al. 2017).

Judges' views on sentencing appear to be particularly affected by the stereotyping of offender characteristics that have been defined in the literature as essential, such as gender, race, and mental disorder diagnoses, that dictate how a person's identity is perceived and what outcomes are expected of him (Reference Norenzayan and HeineNorenzayan and Heine 2005). Stereotyping of these characteristics often leads to negative influences on sentencing for certain categories of offenders, particularly influencing attributions of blameworthiness and community protection (Reference HartleyHartley et al. 2007).

Male offenders often receive less preferential treatment in sentencing, particularly resulting from cultural stereotypes associated with dangerousness, compared to females (Reference JohnsonJohnson 2003). Cultural stereotypes associated with paternalism are also thought to result in more lenient sentences for women compared to men; women may be seen by judges as more helpless than men, and, therefore, more in need of being protected (Reference RodriguezRodriguez et al. 2006). Judges have also been thought to adhere to negative social stereotypes associated with race in sentencing, particularly leading to harsher sentences for African-Americans (Reference Jordan and FreiburgerJordan and Freiburger 2010). For example, judges may believe that black defendants cannot afford to pay fines because they are more likely to be poor because of their race, using the “impoverished” status of a black offender to rationalize beliefs that he should receive a more punitive sentence (Reference StarrStarr 2014).

Most pertinent to this paper, judges also often stereotype offenders with mental disorders during sentencing, which in some cases has been found to have negative influences on their punishment views (Reference ParryParry 2005). Such stereotyping also sometimes interacts with the stereotyping of other essential characteristics, such as gender and race (Reference Perlin and CucoloPerlin and Cucolo 2017). Although mental disorders can also positively influence sentencing (e.g., Reference BerryessaBerryessa 2014), research has shown that offenders with mental disorders are often perceived as less treatable and more dangerous compared to offenders without diagnoses, leading judges to choose more restrictive sentences based on fears related to dangerousness or lack of rehabilitation (Reference BatastiniBatastini et al. 2017; Reference Jones and CauffmanJones and Cauffman 2008).

Particularly, the socio-legal literature on sanism has argued that judicial stereotyping of offenders with mental disorders is an every-day practice, leading to anti-therapeutic effects on sentencing (Reference PerlinPerlin 1992). Sanism has been defined as the negative treatment of individuals with mental disorders by those in the legal system, resulting from “a disease of stigmatizing attitudes” toward the diagnosed based upon false assumptions about their character and potential outcomes (Reference PerlinPerlin 2013). This negative treatment may include less opportunities for rehabilitative sentencing, longer prison sentences, and more restrictive punishments (Reference Lewis and RudnickLewis 2012). An intrinsic part of sanism is that people with mental disorders are perceived as “essentially” different from the rest of society and are categorized into a social group with expected outcomes by legal actors (Reference Lewis and RudnickLewis 2012; Reference PerlinPerlin 2013). Thus, sanist decisionmaking in cases involving mental disorders reflects the same kinds of bias- and stigma-driven stereotypes exhibited in decisionmaking in cases involving other essential characteristics, such as gender or race (Reference MossmanMossman 1999; Reference PerlinPerlin 2013).

The process by which judges stereotype essential characteristics and how that process may negatively affect sentencing for certain groups remains unknown from existing literature. However, social psychological literature has suggested that stereotyping related to essential characteristics may result from linking relationships between unconscious biases toward the essentialist characteristic and stigmatization of individuals resulting from such biases (Reference HeathertonHeatherton 2003; Reference YzerbytYzerbyt et al. 1997). Biases in stereotyping are automatic attitudes outside of one's control (Reference YzerbytYzerbyt et al. 1997; for a discussion on unconscious bias in social psychology, see Reference HassinHassin et al. 2004). For example, essential characteristics can lead to biases related to homogeneity, meaning all individuals with an essential characteristic are perceived to have similar characteristics because of their shared “essence” (Reference McGillMcGill 1998). Such biases lead to group-level stigmatization in which whole groups of people with certain characteristics are thought to possess certain attributes (Reference HeathertonHeatherton 2003). Reference GoffmanGoffman (1963) argues that stigma is a perceived characteristic of an individual that is “deeply discrediting” and reduces identity to this stigma. Ultimately, discrimination or punishing behavior is a behavioral response based on stereotyping that may result in harm toward members of a group defined by an essential characteristic (Reference CrockerCrocker et al. 1991). Thus, although the process by which judicial stereotyping of essential characteristics may negatively influence sentencing remains unknown, this literature suggests that this process and punishing behavior related to stereotyping, such as negative effects to judges' views on sentencing, may be connected to the relationships between biases toward essentialist characteristics and stigmatization resulting from such biases.

Method

This research uses qualitative methodology and a grounded theory analytical approach, as it allows for the development of theoretical models from data and the examination of relationships between phenomena being studied (Reference Strauss and CorbinStrauss and Corbin 1990). In the remainder of this section, the study's participant selection and interview protocol will be discussed, followed by data collection and analysis.

Results

Demographics

Basic demographics of the 59 interviewed Pennsylvania judges can be found in Table 1. None of the demographics collected in this study appeared to influence any themes observed in the data related to the research questions. All judges handled criminal offenses, most of who hear all criminal case types from misdemeanors and felonies under general jurisdiction. Other demographics (e.g., court served upon, unique aspects of caseload/backgrounds, statistics on specific types of offenses heard), which did not have any bearing on the results but may be noteworthy to interested parties, are available upon request.

Table 1. Judge Demographics (N = 59)

Results of the Theoretical Model

Three overarching axial coding categories (genetic essentialist biases, stigma, effects on sentencing/punishment) were recognized and organized during the coding process, as influenced by the aims of this study. Ultimately, by positioning the relationships that emerged in the axial coding categories during selective coding, findings support the model presented in Figure 1 representing how judicial stereotyping may negatively affect sentencing of offenders with mental disorders known or thought to be genetically influenced. As discussed below, judges exhibited stereotyping behavior by linking the relationships between three particular genetic essentialist biases (immutability, informativeness, uniformity) and three types of stigmatization (pessimism, dangerousness, family stigma) associated with each bias when exhibited. When judges exhibited this stereotyping without the effects of the intervening conditions discussed below, judges expressed how knowledge of the genetic influences to an offender's mental disorder would negatively influence their views on sentencing and punishment, specifically related to more restrictive sentences and support for deterrence and incapacitation. Three intervening conditions (personal experiences with genetics, higher scientific determinism scores vs. free will scores, and no personal experiences with mental disorders) influenced whether stereotyping associated with genetic essentialist biases resulted in either positive or no effects, rather than negative effects, on judges' sentencing views.

Figure 1. Developed Model of How Judicial Stereotyping Associated with Genetic Essentialist Biases toward Mental Disorders May Negatively Influence Judges' Views on Sentencing and Punishment.

Each part of the developed model is presented in the following sections. First, data are presented to illustrate how results from the two axial coding categories, genetic essentialist biases and stigma, relate to each other as a form of judicial stereotyping. Then, results associated with the axial coding category, effects on sentencing/punishment arising from knowledge than an offender's mental disorder is genetically influenced, are then presented. Although this research and model development focused on how stereotyping may negatively influence judges' views on sentencing, all three effects on sentencing/punishment (negative, positive, no effect) are discussed, as intervening conditions were found to influence whether judicial stereotyping associated with genetic essentialist biases resulted in either positive or no effects on judges' sentencing views. Finally, intervening conditions and how they influenced the model, specifically focusing on how they disrupted judges' negative views on sentencing, will be presented.

Stereotyping

Forty-nine judges exhibited nine different types of genetic essentialist biases, which were identified during open coding and organized during axial coding (Table 2). No genetic essentialist biases were coded in the interviews of 10 judges. However, the majority of observed biases, such as discreteness, were only exhibited by a few judges rather than across the entire sample. Arising from the exhibition of these biases, 47 judges exhibited five different types of stigma toward offenders, which were identified during coding (Table 3). However, two stigmas (blame/personal responsibility, social distance) were only exhibited by a small number of judges and not found to be consistently associated with the exhibition of any particular genetic essentialist biases. No stigmas were coded in the interviews of 12 judges, and 9 of these judges were those whose interviews did not include codes for genetic essentialist biases.

Table 2. “Genetic Essentialist Biases” Coding Category

Table 3. “Stigma” Coding Category

These data support patterns of judicial stereotyping, particularly the consistent relationships between judges' exhibition of three genetic essentialist biases and three types of stigmatization. Immutability, informativeness, and uniformity were observed during open coding as biases present in more than half of the responses of the 49 judges who exhibited biases and were each consistently associated with the exhibition of pessimism, dangerousness, and family stigma in unique ways. As such, the data here are organized by a description of each exhibited bias, followed by discussions of how each stigma arose from that bias. Positioning data in this way illustrate how different aspects of stigmatization are uniquely linked with each genetic essentialist bias.

Immutability

Thirty-five judges discussed the immutable nature of the genetic influences to an offender's mental disorder, largely focusing on how mental disorders are not thought to be as malleable if they are known to be genetically influenced. One characteristic response related to this sentiment was as follows: “To what extent can behavior be modified regarding someone with a genetic disorder as opposed to a non-genetically acquired disorder? I'd like to see the comparisons between the two and say okay, well, this guy is screwed because he's got a genetic disorder. I just don't know to what extent behavior can be modified” (Judge 41). Judges also likened the genetic influences to an offender's illness to genetic physical characteristics, such as eye color, that they perceived to be predestined characteristics. For example, one judge said, “If it's a genetic disorder it would weigh in on a sentence because it's like having blue eyes. There's nothing you can do about it, but you would have to deal with it” (Judge 15).

In addition, judges discussed how the genetics of an offender's mental disorder determines behavior and destiny, which cannot be “overridden” because of how strong the genetic influences are on the offender's characteristics, specifically impulse control. One judge commented that, “I'd say that if [offenders with mental disorders known to be genetically influenced] know right from wrong, then they shouldn't let the genetic disposition use as an excuse. Now, I'm going to say that with a caveat. There are some genetic dispositions obviously that override a person's willpower, override a person's ability to control it” (Judge 41). Many judges also connected this idea of genetically determined behavior to inevitable recidivism: “[Those] people are just wired differently. Their DNA is different…what can you do? [Do they come back], which they will. That's what the statistics show and that's certainly what I've seen in my court room” (Judge 56). Another judge stated that, “I believe that [genetics] takes over…it becomes who that person is, in the negative way…and because of that, I think it overshadows what the person's real personality, real behavior” (Judge 31).

Stigmas arising from Immutability.

Pessimism: Twenty-eight judges who exhibited biases related to immutability discussed pessimism for offenders and outcomes because the genetic influences to their mental disorders have unchangeable influences on those individuals' lives. Judges specifically related how the genetic influences may minimize the potential for successful treatment amenability. One judge said that, “[genetics] is not an excuse but certainly, it gives you some idea about how you're going to handle someone because that's not something they can usually help” (Judge 11). Commenting on lack of potentially successful services for these offenders, a judge stated, “I have read some studies on the fact that maybe they don't have as much control over things that as we think they do but…I am not sure that services are out there to help them” (Judge 25).

Dangerousness: Twenty judges who exhibited immutability discussed how the genetic influences to an offender's mental disorder makes him more likely to be dangerous toward others in the future; this was specifically associated with the offender's perceived impaired ability to control his behavior due to his disorder's immutable qualities. One judge commented that, “I think that we all have the ability to make choices, but if we have some sort of [genetic mental health problem]…that affects our ability to check our impulses…that that deprives us of the capacity to make choices.” (Judge 1).

Family Stigma: Fifteen judges whose responses were associated with immutability related how genetic influences to an offender's behavior, as dictated by his familial lineage, may predispose him to antisocial outcomes. Judges described how parents' ill raising of an offender is also influenced by genetics, potentially preordaining an offender's inevitable or immutable criminality. For example, one judge stated, “Kids who get into [bad things]…how much of that is an extension of a genetic issue…sucky parents usually make kind of sucky kids and good parents usually make good kids, so how much of that is genetic, well, they're good parents because they got good genes and they pass these good genes onto their kid and sucky parents have sucky genes” (Judge 20).

Informativeness

Forty-two judges who exhibited genetic essentialist biases discussed the informativeness of knowing how an offender's mental disorder has genetic influences can tell judges a lot about an offender's behavior, characteristics, and outcomes. Judges considered how knowing that an offender's mental disorder has genetic influences informs judges about the reason why an offender has entered the criminal justice system, rather than other factors. For example, one judge commented that, “Someone with a mental disorder more genetically prone…[does] their disorder push them into the criminal justice system rather than their societal conditions? Probably, yes” (Judge 53). Judges discussed how knowledge of the genetic influences to an offender's mental disorder provides information on his likelihood for antisocial outcomes: “It's pretty easy to see that genetics plays a very large role in crime in general as well as in mental illness and crime…I think that determining whether or not somebody lives an honest life free of criminal activity or whether somebody lives a life with criminal actions, I think that genetics plays the biggest role in that. I'm sad about that because I don't want it to be that way. I don't like the idea of punishing people for bad genes. I like the idea of punishing people for bad choices” (Judge 1).

Stigmas arising from Informativeness.

Pessimism: Twenty-six judges who exhibited informativeness connected such sentiments to pessimism regarding an offender's treatability, exhibition of positive traits, or ability to live a productive life. Judges commented that an offender's mental disorder with known genetic influences informs them to how likely a person may be unable to control behavior. For example, one judge commented that, “There may be tendencies or…impulses that may not necessarily be able to be turned off…or deliberated in [the same] way by a person not having a [mental disorder with genetic influences]” (Judge 39). Similarly, another judge stated, “I definitely think it does affect their ability to make choices. I think that they are hardwired to behave in a certain manner.” (Judge 25).

Dangerousness: Twenty-eight judges who exhibited informativeness connected their views on how the genetic influences to an offender's mental disorder informs them on potential dangerousness related to public safety and containing future offending. For example, one judge stated that “[genetics] might make me be more concerned about public safety because…I would draw the inference that the defendant might not have as much control over the mental illness” (Judge 49). Judges also commented that genetic influences also inform them that an offender may pose a danger to himself, which often can go hand-in-hand with public safety concerns. For example, one judge stated, “I would have to say there are times I do not put bail on somebody because of their condition…they got to stay somewhere and it's for safety…I think there's not only society but they're safer in jail than they are outside” (Judge 20).

Family Stigma: Twenty-two judges who exhibited informativeness discussed how knowing that an offender's mental disorder is genetically influenced informs them about the families of these offenders and how they may have similar anti-social outcomes. Particularly, this idea of family stigma extended to perceptions on offenders' future children, including informing judges on future generations' likelihood for criminality. Judges vocalized such sentiments with responses like the following: “You see several generations of [offenders with mental disorders] around us where obviously there is huge genetic component that passes through the family and you can't help but occasionally ask that question, ‘why are we allowing those people to have children and continuing on to the next generation?…We combat that and say there got to be a better way. But it's a temptation that comes into play I think with every judge” (Judge 46).

Uniformity

Twenty-eight judges discussed how offenders with similar types of mental disorders known to be genetically influenced have similar character and behavioral attributes, based on the fact that individuals with similar genetic characteristics are similar to each other. “The older I get, I see confirmed that the apple doesn't fall far from the tree. It's kind of a layman's assessment. But I think it explains a lot of things, especially mental health” (Judge 21), one judge commented. Similarly, one judge stated “I think the genetic component is life…We all can see that. With multi-generational families, you will see lot of the same characteristics” (Judge 13). Judges also grouped offenders with similar mental disorders with similar genetic influences by pronouns such as “they” and “them,” and discussed uniform outcomes for these offenders: “I think it makes them more inclined…to come into the justice system…and that much harder for them to leave our criminal justice system.” (Judge 8).

Judges grouped offenders with perceived similar genetic influences to their mental disorders into a uniform group with similar characteristics. For example, one judge stated, “There are some people that have a diminished capacity [due to genetic influences]…they are the ones who're getting to the most trouble and cause the most problems in our community, and it's not entirely fair to lump them in the same category with somebody who would consciously choose to do an evil act. But on the practical side of things, even if we shouldn't say that they're bad people, we need to make sure that society is safe from them because they are an increased danger” (Judge 1).

Stigmas arising from Uniformity.

Pessimism: Twenty judges who exhibited sentiments related to uniformity reported some degree of pessimism for any offender with a mental disorder known to be genetically influenced, as individuals with similar genetic characteristics are similar to each other. Judges particularly commented on how similar negative life outcomes are expected for the majority of offenders with genetically influenced mental disorders, focusing on how the genetic influences to disorders affect the potential treatability regardless of the exact diagnoses. For example, one characteristic response was the following: “We can figure out if this person has this illness that is genetically-based. But unfortunately, there is no way to lessen the effects of it on the individual and change the individual's actions on society” (Judge 52).

Dangerousness: Eighteen judges who exhibited uniformity in their responses connected such sentiments to fears that genetic influences to offenders' mental disorders, regardless of the specific diagnosis, helps to provide information on the potential dangerousness of offenders and ways to prevent future offending. Judges not only focused on regulation by incarceration, but other methods such as civil commitment. Judges particularly focused on disentangling if and how much they can attribute genetic influences as an underlying, dominant reason for an offender's behavior, regardless of other offender characteristics. For example, one characteristic response stated, “If genetics is the main player in determining why somebody commits a crime, that it would seem to me that in those situations we should be focusing on civil commitments where nobody's saying the person is bad…we're saying the person is dangerous” (Judge 1).

Family Stigma: Thirteen judges who exhibited uniformity discussed how knowledge that an offender's mental disorder is genetically influenced affects how they view the background of that individual's entire familial lineage, because of their shared genetics background. One characteristics response related to these sentiments is as follows: “I've seen the same families for twenty-five years coming through the system. I had the grandfather, the son and then I had the grandchild for a crime. Clearly, genetics play a vital role in how people interact with the criminal justice system: I can see the same families over and over…part of that is they're predisposed…from their genetics” (Judge 22).

Effects on Sentencing/Punishment

All 59 judges exhibited three types of effects on their sentencing and punishment views when discussing the relationship between sentencing offenders with mental disorders and known genetic influences to mental disorders; these themes were identified during open coding and organized during axial coding (Table 4). These effects on sentencing and punishment, discussed below, include negative, positive, and no effects.

Table 4. “Effects on Sentencing/Punishment” Coding Category

Negative

Twenty-four judges discussed how the genetic influences to an offender's mental disorder would in some way negatively affect their views on sentencing. These judges primarily focused on discussing sentencing as a way to protect the public from the potential dangerousness of an offender related to their pessimism on treatment amenability associated with the perceived immutability of his mental disorder's genetic influences. Judges discussed making sentencing more restrictive for these offenders to contain dangerousness. For example, one judge stated, “The person may not have the ability to rehabilitate themselves…if it's something which poses a threat to the community, then my sentencing might be more restrictive because if it's a genetic problem then maybe nothing that I do in terms treatment is going to change their behavior” (Judge 3). Judges also discussed their increased concerns on regulating an offender's behavior to protect the public if they know his mental disorder diagnosis has genetic influences as related to family stigma. For example, one judge, discussing how more restrictive punishments may be warranted for those with mental disorders with genetic influences, stated, “If you have a family that has a mentally ill parent or mentally ill child…we kind of know going forward when the case comes in that this person came from that tree and there is a good chance that they have some genetic predisposition that warrants handling the case a little differently than ‘kicking them in the ass’ with fines” (Judge 14).

In these discussions regarding protection of the public, judges who exhibited negative effects on their sentencing views largely focused on increased emphasis regarding potential deterrence and incapacitation of offenders with mental disorders known to be genetically influenced. Regarding deterrence, 19 judges discussed using sentencing to deter future recidivism in order to protect the public by focusing on more restrictive policies to prevent offending: “My initial reaction to finding out that…their disorder is caused by genetics…[is I would] empathize a little more but my main concern would be public safety and making sure that they won't make the same mistake twice…being genetically predisposed, it would have much of a bearing on my decision” (Judge 53). Regarding incapacitation, 15 judges discussed potentially needing to incapacitate offenders away in order to protect the safety of the community: “It is what it is and I still would just look at the danger to the community and the chance for…medication and rehabilitation…protecting the community is always of the utmost importance…It's something that we use in considering whether to release someone back into the community” (Judge 15).

Positive

Thirteen judges discussed how the genetic influences to an offender's mental disorder would positively affect their views on sentencing, largely associated with wanting to use sentencing to provide treatment opportunities, access to rehabilitative sentencing, and to help minimize future contact with the justice system. As one characteristic response, one judge said, “Sometimes when there is awareness that there is a genetic influence, there may be some treatment possibilities for the person that the person hasn't tried yet, so I suppose if I knew that then I would enquire what…since we know this about this illness, what are the treatment possibilities for someone” (Judge 52). Judges discussed wanting to use community corrections, types of medical/psychological therapies, or other treatment-oriented sentences as a first line of defense in helping to curb reoffending of these offenders: “I think I'm a proponent of treatment no matter what…People that come in, especially in our system, in the criminal justice system, that do have diagnosable disorder…they're not receiving treatment. Treatment is better than no treatment. I think you have to start somewhere” (Judge 39). Judges also discussed their feelings of sympathy, which help to fuel their desire to search for treatment and rehabilitative opportunities for offenders with mental disorders known to be genetically influenced. For example, one judge stated, “We are not supposed to have sympathy. We are not supposed to have prejudice. But we are human” (Judge 13).

No Effect

Twenty-two judges discussed how the genetic influences to an offender's mental disorder would have no effect on their views on sentencing or punishment. These judges described the origin or influences of the disorder as being unimportant to sentencing. One judge said, commenting how it may affect sentencing practices, said, “I'm not sure it does. It is what it is…no matter whether it's something that just happens because it's chromosomal or it's something that just happens because someone makes a conscious decision to alter reality, it happens” (Judge 15). Another judge, commenting about an offender's responsibility, stated, “I don't know that it changes a whole lot, only because people can do horrific things that they need to be held accountable for even though they're genetically predisposed to do it” (Judge 36).

Furthermore, these judges discussed how the genetics of a mental disorder are unimportant to how they view different aspects of punishment. For example, commenting on sentencing as a way to ensure public safety, “I'm not sure that that [genetics] really has a lot of bearing on the public safety question…whatever the cause of the illnesses, if the individual presents danger to others, we need to take that pretty seriously” (Judge 47).

Intervening Conditions

Three intervening conditions influenced if and how judges exhibited the model developed in this research: personal experiences with genetics, higher scientific determinism scores vs. free will scores, and no personal experiences with mental disorders. Particularly, these conditions influenced whether judicial stereotyping associated with genetic essentialist biases resulted in either positive or no effects, rather than negative effects, on judges' sentencing views. Some judges exhibited more than one intervening condition.

Intervening Condition #1: Personal Experiences with Genetics

Sixteen judges reported that they had some personal experiences with genetics, which acted as an intervening condition; for example, five judges said that they undergone the process of genetic testing to see if they would inherit different disorders or genetic mutations. Another judge had a child with a genetic metabolic disorder. Another judge had worked previously as a pharmaceutical sales representative and had been educated on genetics through that experience. Another judge was married to a biomedical engineer who uses genetics in his/her research, while another judge has a child doing a doctoral degree in genetics.

Personal experiences with genetics were found to act as an intervening condition regarding whether or not these judges expressed negative views on sentencing and focused on deterrence or incapacitation (Figure 2). Judges who reported personal experiences with genetics in some context did exhibit the same stereotyping behavior as other judges in this research who did not have personal experiences with genetics. However, these personal experiences were found to act as an intervening condition that influenced if and how this stereotyping affected or led to judges' views on sentencing. Specifically, judges with personal experiences with genetics almost entirely exhibited positive, rather than negative, effects on their sentencing views regarding knowledge of genetic influences to an offender's mental disorder (with a few judges with personal experiences with genetics exhibiting no effects on sentencing). In fact, even while exhibiting these biases and stigmas, these judges largely focused on using sentencing to attain treatment for offenders, rather than other punishment objectives. Thus, personal experiences with genetics appears to be an intervening condition that may disrupt whether stereotyping related to genetic essentialist biases leads to negative effects on punishment views.

Figure 2. The Role of “Personal Experiences with Genetics” Acting as an Intervening Mechanism Disrupting This Study's Developed Model.

Intervening Condition #2: Higher Scientific Determinism Scores vs. Free Will Scores

Judges' higher scores on items related to scientific determinism compared to items related to free will, as measured by administering selected items from the FAD-plus, acted as an intervening condition (Figure 3). Fourteen judges reported higher scientific determinism scores, measuring support on the extent to which biological forces are influential on behavior/outcomes, compared to their free will scores, measuring support on the extent to which people are in control of their own outcomes. Of these judges, all but two expressed that the genetic influences to an offender's mental disorder would not affect their views on sentencing. Similar to judges with personal experiences with genetics, judges with higher scientific determinism scores also exhibited the stereotyping behavior that other judges did, meaning that they exhibited the same genetic essentialist biases and stigmas as judges in this research who reported higher free will scores (compared to their scientific determinism scores). However, judges with higher scientific determinism scores exhibited no effects on sentencing regarding the genetic influences to an offender's mental disorder. Thus, judges' higher scores on items related to scientific determinism, compared to their scores on items related to free will as measured by the FAD-plus, appear to be an intervening condition that may disrupt whether stereotyping related to genetic essentialist biases leads to negative effects on sentencing.

Figure 3. The Role of “Higher Scores on Scientific Determinism vs. Free Will” Acting as an Intervening Mechanism Disrupting This Study's Developed Model.

Intervening Condition #3: No Personal Experience with Mental Disorders

Not having personal experiences with individuals with mental disorders (i.e., in their own lives, families, friendships, or other personal contexts) was a powerful intervening condition that completely disrupted the model developed in this research from the beginning of the theoretical process (Figure 4). There were 17 judges who reported no personal experiences with mental disorders. Generally, these were the judges who exhibited little or no stereotyping, and correspondingly, exhibited no negative effects on sentencing. As noted above, 10 judges exhibited no genetic essentialist biases in their interviews, and 9 of those did not have personal experiences with mental disorders. Correspondingly, 12 judges exhibited no stigmatization (9 of them not having exhibited genetic essentialist biases), and 8 of those judges did not have personal experiences with mental disorders. Furthermore, only two of the judges with no personal experiences with individuals with mental disorders expressed negative sentencing views, while the remaining 15 expressed either positive effects or no effects on their sentencing views. Thus, not having personal experiences with mental disorders appears to be an intervening condition that can disrupt whether stereotyping is exhibited, and correspondingly, if judges express negative sentencing views from the beginning of the model developed in this research.

Figure 4. The Role of “No Personal Experiences with Mental Disorders” Acting as an Intervening Mechanism Disrupting This Study's Developed Model.

Discussion

The model developed in this research illustrates a process by which judicial stereotyping, arising from the relationships between genetic essentialist biases and stigmatization arising from such biases, may negatively affect sentencing views toward offenders with mental disorders known or thought to be genetically influenced. Previous literature has supported that judges exhibit stereotyping toward offender essential characteristics during sentencing, but this study offers the first empirical support of its kind suggesting that some judges may exhibit stereotyping toward certain essential characteristics when they are known to be genetically influenced and that such behavior has the potential to negatively affect sentencing, specifically related to deterrence and incapacitation.

Relatedly, as sanist decisionmaking in cases involving mental disorders is thought to reflect the same type of stereotyping behavior exhibited in cases involving other essential characteristics (Reference MossmanMossman 1999), this study also offers support that judicial stereotyping associated with genetic essentialist biases might be thought of as a type of judicial sanism and how stigmatization associated with genetics may result in judges' negative treatment of individuals with mental disorders (Reference PerlinPerlin 2013). However, one interesting point and potential departure of stereotyping associated with genetic essentialism from classic literature on sanism, positing that prejudice manifests through “ordinary common sense” about people with mental disorders (Reference PerlinPerlin 1992), is the potential role of science in decisionmaking. Findings or knowledge related to genetic contributions to mental disorders are a result of scientific research, not social construction alone; this may be viewed as more objective or sound than “ordinary common sense” views surrounding mental disorders. Indeed, science, specifically genetics, invokes a mythology of truth when used by law compared to other knowledge bases or types of evidence (Reference AronsonAronson 2007). Thus, judicial stereotyping associated with genetic essentialist biases may depart from sanism, in so that judges may feel more comfortable trusting what they perceive as their knowledge or views based on “science.”

Furthermore, although the process by which judges stereotype essential characteristics and how it affects sentencing is unknown, this research supports that judicial stereotyping, at least related to mental disorders and genetic essentialist biases, may fit the model of stereotyping essential characteristics provided by the social psychological literature (Reference HeathertonHeatherton 2003; Reference YzerbytYzerbyt et al. 1997). As this literature suggests, judges in this research exhibited stereotyping behavior by linking the relationships between biases toward mental disorder diagnoses with known genetic influences and stigmas arising from such biases. This then led to judges' increased discrimination and punishing behavior, in the form of negative influences on their views on sentencing, toward offenders with that essential characteristic.

In addition, during stereotyping, judges appear to exhibit similar kinds of genetic essentialist biases and stigmatization toward mental disorders as those often exhibited by the general public (Reference Dar-Nimrod and HeineDar-Nimrod and Heine 2011; Reference PhelanPhelan 2005; Reference PhelanPhelan et al. 2002). The three main genetic essentialist biases (immutability, informativeness, and uniformity) and stigmatization (dangerousness, pessimism, and family stigma) exhibited by judges have been discussed by Reference Haslam and ErnstHaslam and Ernst (2002) and Reference HaslamHaslam (2011) as those commonly exhibited by the lay public toward mental disorders. Although supported in the literature, judges' focus on family stigma was a more surprising finding than the other two stigmas, which are considered main dimensions of stigmatization elicited by genetic essentialist biases (Reference HaslamHaslam 2011). Judges' discussions of family stigma, particularly the few judges who vocalized thoughts on whether offenders with genetic characteristics related to mental health should have children, touched upon aspects of the eugenics-based arguments put forth in Buck v. Bell (1927). This landmark case permitted compulsory sterilization of the “feeble-minded” and has been seen as an attempt to improve the human race by eliminating “defectives” from the gene pool (Reference LombardoLombardo 2008). Although eugenics-based arguments have been since discredited (Reference LombardoLombardo 2008), these results suggest that aspects of such beliefs may still be held by certain members of the judiciary.

Regarding views on punishment, research has supported that judicial stereotyping of offender essential characteristics often affects sentencing by influencing attributions of two criteria: blameworthiness and community protection (Reference HartleyHartley et al. 2007). These two criteria, respectively, reflect the principles of retributivism and utilitarianism in sentencing (Reference SteffensmeierSteffensmeier et al. 1998). In this research, without the effects of the intervening conditions, stereotyping associated with genetic essentialist biases negatively influenced judges' views on community protection and more support for restrictive sentencing, deterrence, and incapacitation that could potentially curb dangerousness and recidivism. Conversely, judges in this study generally did not discuss how the genetic influences to an offender's mental disorder would negatively (or even positively) affect perceptions of an offender's blameworthiness for his crimes.

Thus, these data suggest that the effects of judicial stereotyping associated with genetic essentialist biases toward mental disorders may primarily negatively influence judges' sentencing views on community protection (rather than their views on blameworthiness), and, therefore, principally influence their utilitarian, rather than retributivist, sentiments regarding sentencing. Indeed, utilitarianism often focuses on sentencing goals related to incapacitation and deterrence if an offender is perceived to be potentially dangerous in order to protect the public (Reference UlmerUlmer 1997), which echoes judges' views expressed in this research. Retributiveness, in which punishment views are affected by perceptions of an offender's blameworthiness for his past actions (Reference SteffensmeierSteffensmeier et al. 1998), was not found to be affected in this developed model, either positively or negatively. Although this research only examines mental disorders, it is possible that adding genetic knowledge to essential characteristics may primarily negatively affect judges' utilitarian sentiments regarding sentencing (Reference AlbonettiAlbonetti 1991; Reference HartleyHartley et al. 2007). Future research should examine if adding knowledge of genetic influences to other essential characteristics may influence judges' utilitarian or retributivist views on sentencing.

One other interesting thing to note is that these findings also provide perspective on how knowledge of genetic influences to an offender's mental disorder could positively affect judges' utilitarian sentiments. Several judges, particularly those with personal experiences with genetics and/or no personal experiences with mental disorders, commented on how such knowledge would positively affect their support for treatment opportunities to rehabilitate an offender in order to prevent recidivism. Community protection is often associated with deterrence and incapacitation, but also reflects the goal of rehabilitation in which judges use sentencing to protect society by preventing offending via treatment of an offender's behavior rather than traditional policies (Reference SteffensmeierSteffensmeier et al. 1998). Thus, these data suggest that judges' perceptions of community protection related to rehabilitation, and correspondingly utilitarianism, have the potential to be positively affected by knowledge that an offender's mental disorder diagnosis has genetic influences.

The intervening conditions observed to influence the exhibition of the model presented in this study also provide valuable data on judicial characteristics that appear to affect whether judges express negative influences to their sentencing views. Judges who had personal experiences with genetics, although still exhibiting stereotyping behavior associated with genetic essentialist biases, almost universally demonstrated positive effects on sentencing and a focus on treatment, rather than negative effects and a focus on deterrence and incapacitation. This lends support to the idea that experiences that increase knowledge on genetics and genetics-related research may counteract some of the negative effects of genetic essentialist biases, even when they are exhibited (Reference ConditCondit et al. 1998; Reference Dar-Nimrod and HeineDar-Nimrod and Heine 2011), as well as help to alter the focus of specific punishment philosophies.

Furthermore, it was surprising that judges' higher scores on items related to scientific determinism, compared to their scores on items related to free will, acted as an intervening condition in this research. Of course, views measured by the administration of items from the FAD-plus do not take into account the potential intervening effects of judges' beliefs on other concepts, such as social determinism, which may also be influential on overall punishment views. However, these results suggest that stronger beliefs toward scientific determinism may be able to disrupt negative sentencing views specifically related to deterrence and incapacitation, even when judicial stereotyping related to genetic essentialist biases is exhibited, in cases involving mental disorders. Deterministic views of outcomes of those with mental disorders are known to be intrinsically intertwined with the negative effects of genetic essentialist biases (Reference WachbroitWachbroit 2000). Thus, it was unexpected that judges with stronger beliefs toward scientific determinism would show no effects on their punishment views regarding offenders with mental disorders with known genetic influences. Indeed, when an individual believes that an offender's behavior is affected by some kind of “deterministic influences,” such as genetics, this often leads to more support for utilitarian punishments based on deterring future transgressions (Reference WeinerWeiner et al. 1997). This study does not support this previous literature.

Why this may be the case should be systematically examined in future inquiries, but there is one potential possibility. As noted above, these data indicate that negative effects on punishment primarily surround utilitarianism and community protection, and it is possible that judges with stronger beliefs toward scientific determinism may hold some negative views on utilitarianism and community protection (Reference WeinerWeiner et al. 1997). However, judges also may have separate beliefs on the utility or fairness of retributive punishments for these offenders, even though not explicitly discussed during this research. Specifically, judges who subscribe to stronger beliefs toward scientific determinism may be more likely to believe that an offender with a mental disorder is less blameworthy because he is unduly influenced or “determined” by the genetics of his disorder, which may mean his punishment should be mitigated. This would align with literature reporting that when individuals perceive an offender to have a lower degree of free will, it often leads them to render less retributive punishments (Reference ClarkClark et al. 2014). Therefore, it is possible that these judges may hold some negative views on community protection, as well as some mitigated perceptions on retributivism of offender responsibility, and that these views might be producing countervailing effects. This may help to explain why judges with stronger beliefs toward scientific determinism generally reported that a mental disorder's genetic influences would lead to no effects on their punishment views.

That fact that judges' lack of personal experiences with mental disorders acted as an intervening condition that disrupted the entire model developed in this research was also a surprising finding. Judges' personal experiences with mental disorders have been shown to often positively affect their views and decisions in legal contexts related to sympathy toward diagnosed offenders (Reference BerryessaBerryessa 2014). Thus, having personal experiences with mental disorders might have been anticipated to be an intervening factor that would have hindered stereotyping and negative effects on sentencing. It is possible that judges with no personal experiences with mental disorders may be exhibiting certain biases or stigmas, but they may not be those identified in this research. Nonetheless, future research should examine why no personal experiences with mental disorders might hinder stereotyping related to genetic essentialist biases.

This research does have limitations. The sample size is large for qualitative research, but still does not allow for generalizability of these results to all Pennsylvania or U.S. judges. There are also certain characteristics of the Pennsylvania judiciary which may affect whether these views could be seen as typical of other judicial populations. For example, although judges in Pennsylvania were sampled in order to maximize participation, it is possible this may have affected judges' views or what judges responded. In addition, Pennsylvania judges are elected and such views may be different from judges who are appointed, as judges who are elected may be more likely to take public opinion into account in sentencing due to fears related to reelection (Reference BurnsideBurnside 1999). Pennsylvania is also a sentencing guidelines state; judges in jurisdictions with untrammeled discretion may have other views (Commonwealth v. Sessoms 1987). Finally, in Pennsylvania, judges who have not previously served as lawyers may sit on misdemeanor cases in the Minor Courts (Reference CraneCrane 2015). In this sample, eight judges without Juris Doctorates on the Minor Courts participated in this study. Although this difference in training did not have any bearing on the results, this demographic difference from other judicial populations should be noted.

In addition, it is important to note that biases and stereotyping behavior are among the most human of attributes and common psychological practices that transcend cultural, social, and other backgrounds (Reference Norenzayan and HeineNorenzayan and Heine 2005). Therefore, judges should not be villainized for exhibiting stereotyping related to genetic essentialist biases. Instead, the fact that these biases exist and may affect interactions in the legal system should be acknowledged and understood.

Ultimately, this research represents implications related to genetic essentialist biases toward mental disorders in the legal system, specifically for “therapeutic judging” associated with the therapeutic jurisprudence movement. The law, particularly punishment, has often had detrimental consequences for defendants with mental disorders, including marginalization and oppression (Reference KingKing et al. 2014). The therapeutic jurisprudence movement has attempted to remedy this in part by trying to help judges counteract their stereotyping and sanist tendencies in order to acknowledge that defendants with mental disorders have unaddressed problems of which they can be helped to “overcome” with attention and therapeutic treatment provided by the court (Reference HunterHunter et al. 2016). Rather than believing the defendant should attune their behavior to regulations set by punishments based on traditional social-control, therapeutic judges must motivate offenders to engage in treatment and develop therapeutic plans to reduce criminal behavior (Reference WienerWiener et al. 2010).

However, this study suggests that knowledge on genetic influences to an offender's mental disorder diagnosis might undermine the goals and ability of therapeutic jurisprudence to improve the treatment of those with mental disorders. Although the views of some judges in this research were positively affected by this knowledge, particularly related to rehabilitation, these data support that genetic essentialist biases toward mental disorders may lead many judges to consider more regulatory punishments associated with incapacitation and deterrence. Judges' consideration of these punishments appears to be based on assumptions that such offenders are more dangerous and less likely to be successfully treated or helped to “overcome” their behavior due their mental disorders' immutability. Instead of helping judges to acknowledge and accept that offenders with mental disorder diagnoses should be therapeutically treated by the court, such knowledge of genetics may in fact increase perceptions that traditional regulatory punishments are warranted to prevent reoffending. As punishment has historically had harmful and oppressive consequences for offenders with mental disorders (Reference KingKing et al. 2014), this study suggests that genetic essentialist biases in judicial decisionmaking could be a new mechanism by which the law plays a role in the negative treatment and marginalization of offenders with mental disorders, potentially leading to support for longer and more restrictive sentences and less focus on rehabilitative sentencing options.

As this research suggests that knowledge on genetic influences to mental disorders has the potential to produce anti-therapeutic effects counter to the goals of therapeutic jurisprudence, illuminating ways to both integrate and counteract genetic essentialist biases into “therapeutic judging” is imperative. First, one such way to integrate such biases into therapeutic judging may be reorienting the concept of therapeutic jurisprudence as a form of social control to judges. Although therapeutic jurisprudence implicitly adopts a model of an offender being “sick” and requiring treatment provided by the court, this authority is still based on social control, while also providing treatment (Reference HunterHunter et al. 2016). The treatment provided within the therapeutic process still operates as a form of regulation over the offender's criminal behavior by understanding and treating such behavior through a judge's legal authority (Reference MooreMoore 2006). If the principles of therapeutic jurisprudence are framed not only as treatment, but also as effective modes of exercising social control through treatment, judges may be more likely to utilize therapeutic judging in cases involving offenders with mental disorders known to be genetically influenced because it is not perceived to compromise the potential for social control.

Finally, in order to counteract genetic essentialist biases, this research can be used to develop “therapeutic interventions” and training opportunities for judges. Reference Kaiser and HoltfreterKaiser and Holtfreter (2016) argue that if a positive therapeutic shift is to occur to reduce stereotyping behavior and discrimination of those with mental disorders in the legal system, it first requires an understanding of such behavior. The current study helps to provide some initial understanding of how judicial stereotyping associated with genetic essentialist biases may produce harmful outcomes for offenders with mental disorders. By developing such knowledge, therapeutic interventions to disrupt this behavior can be identified in order to potentially help judges better understand the complexities of genetic influences on behavior, reduce anti-therapeutic outcomes for offenders with mental disorder diagnoses, and help judges reflect on their own unconscious biases to disrupt stereotyping behavior and mitigate subsequent negative effects on punishment that may be elicited by genetic essentialist biases. Indeed, a main objective of therapeutic jurisprudence is that judges must become aware that their actions have therapeutic or anti-therapeutic consequences for diagnosed offenders (Reference WexlerWexler 2000). For example, workshops may want to provide lectures or educational materials on mental disorders by psychologists, psychiatrists, or other behavioral health professionals that specifically discuss false “myths” on the informativeness, uniformity, and immutability of genetic contributions to mental disorders in order to counteract judicial biases.

Furthermore, by identifying intervening conditions that influence how and why judges exhibit these biases and their effects on sentencing, therapeutic training methods tailored to judges with certain backgrounds, or methods utilizing certain types of learning materials, can also be formulated to help judges confront their own unique “psycho-judicial soft spots” and prevent sentencing disparities that might result from them (Reference WexlerWexler 2000). For example, as personal experiences with genetics were shown to hinder the negative effects of stereotyping associated with genetic essentialist biases on sentencing views, bolstering judges' knowledge on genetics through personal stories, and through other educational sources, may help judges better understand the complexities of genetic influences on human outcomes. In doing so, this might help mitigate the negative implications of genetic essentialist biases toward mental disorders during sentencing.