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Abstract: Choice architecture is one of the criminal justice system's most powerful--and overlooked--features. The concept of “choice architecture” refers to how the presentation of options shapes outcomes. For instance, organ donation rates are significantly higher in countries that auto-enroll individuals as donors compared to countries that impose an opt-in scheme, a form of choice architecture that alters decision structure to increase uptake rates. Similarly, individuals tend to select healthier options when a menu specifies each item's calories, or when food packaging uses color-coding to indicate nutritiveness, choice architecture that improves decision information to nudge individuals towards nutritious options. Perhaps more than anything else, choice architecture shapes policing, plea bargains, trials, and sentencing. Yet surprisingly, many do not acknowledge the criminal justice system's choice architecture or even know that it exists.
This is a major oversight. The failure to notice choice architecture limits our understanding of the criminal justice system, the rules and principles that govern criminal law and procedure, and the invisible forces that shape justice system actors' routine decisions. Worse yet, by overlooking choice architecture, we ignore its potential as a cost-effective, evidence-based, and successful criminal justice reform tool that is hiding in plain sight. But it doesn't have to be this way. Nor should it. Once we recognize the power of choice architecture, we can leverage it to improve the criminal justice system's fairness, efficiency, and accuracy.
Drawing on the insights of behavioral economics, this article advances a novel theory about the criminal justice system's choice architecture. It argues that the criminal justice system incorporates various forms of choice architecture that impact outcomes in ways that scholars, attorneys, and courts typically overlook. Its concluding parts demonstrate how choice architecture can be used as a powerful and effective law-reform tool and offers various examples of choice-architecture-based law-reform initiatives. Ultimately, this article offers new insights into the choice architecture of criminal justice and the role of choice architecture in criminal justice reform.
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