La cura della discrezionalità giudiziale: la decisione razionale tra emozioni e algoritmi

Abstract

This article explores judicial discretion in criminal sentencing through the lens of care, understood as a reflective and responsible exercise of judicial power consistent with the humanization of justice and restorative principles. Focusing on the Italian system and on the reforms introduced by Legislative Decree n. 150/2022 (the Cartabia Reform), the paper analyzes the redistribution of sentencing discretion among judges and its evolution into a “systemic discretion”, oriented toward alternative and rehabilitative responses. Moving beyond the normative framework, the contribution examines the concrete exercise of discretion, highlighting how rationality, emotions, and cognitive biases shape judicial decision-making. Drawing on behavioral sciences and neuroscience, it aims to foster judges’ awareness of how emotional dynamics and bounded rationality can enhance the quality of sentencing decisions, offering them conceptual tools, such as debiasing techniques, to recognize and manage these influences. Finally, the paper analyzes behavioral tools, such as moral reasoning and empathy, framed as essential human capacities for guiding discretion toward equitable, individualized and dignified outcomes, as well as systemic tools, such as expert systems and algorithmic tools, arguing that such instruments may be useful only insofar as they enhance, rather than replace, human judgment.