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September 6, 2010

"Anchors Away: Why the Anchoring Effect Suggests that Judges Should Be Able to Participate in Plea Discussions"

The title of this post is the title of this new article available via SSRN from Professor Colin Miller.  Here is the abstract:

The “anchoring effect” is cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor.  Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates.  More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers.  Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal cases in this country produce unjust results based upon an unconscious cognitive bias.

This article thus proposes a solution that most jurisdictions have rejected: Judges should be able to participate in the plea discussions.  Federal Rule of Criminal Procedure 11(c)(1) and most state counterparts strictly preclude judges from participating in plea discussions, but a few jurisdictions permit judicial participation. In these jurisdictions, plea discussions commence with the prosecutor and defense counsel laying out their cases and asking for particular dispositions and the judge responding with the expected post-plea sentence.  This article contends that this type of judicial participation would reduce the anchoring effect because the expected post-plea sentence would replace the prosecutor’s opening offer as the anchor and produce fairer final plea bargains.  This article also argues that such judicial participation would ameliorate many of the problems associated with the current plea bargaining system.

September 6, 2010 at 12:57 PM | Permalink

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European criminal law functions exactly this way. The prosecution and the defense work with the judge to determine the level of guilt and assign a sentence accordingly. Of course, there is no presumption of innocence and never a jury in these proceedings either.

In the USA, the accused still has the right to trial by jury. If more accused and their counsel stood up for their rights and demanded a trial by jury, thereby increasing the likely burden on the prosecutors office and the courts then the prosecuation might be inclined to start with a lower initial offer.


Imagine the reaction if, one day, every single one of the defense counsels loitering in front of the courthouse, colluded and agreed to plead not guilty and requested a trial date for every case for which there was a pleading and stuck to that demand.

Posted by: Jardinero1 | Sep 6, 2010 3:41:11 PM

Jardinero1. The first group to protest (and to punish) this collusion will not the be the prosecutors, it will be the judges (at least in my jurisdiction). As a prosecutor my offers are frequently (but not always - some cases do not get any offers) structured based upon the probability of conviction of the pending charges and the likely penalty that will be imposed based upon the sentencing range and the idiosyncrasies of that particular judge. Of course, I am subject to cognitive bias just as anyone else, but as you state the defendants have the ultimate trump card, they can demand a jury trial. For those judges who are not involved in plea bargaining, there will be no anchor effects for those defendants, just more uncertainty for all involved.

I do agree that we need more trials. Defendants should not be punished for demanding their constitutional right to a jury trial. Citizens will more fully understand what really goes on out there and defendants will face the full range of sentence (as set by the Legislature) for their conduct which will be less artificially restricted by pressures entirely unrelated to guilt.

The problem I have with the article is that it assumes that anchoring by prosecutors will produce offers that are too high and that anchoring by defendants will produce offers that are too low. How can we say for sure the offer is too high or too low? According to who? What is the appropriate amount of time for a particular crime? Is it legitimate to consider variables such as cost of a jury trial or how risk averse each side really may be. Is any agreed upon sentence by two well represented parties too high or too low? The additional problem with the anchoring article is that it does not account for the adjustment effects of overcharging and "too high" offers from the prosecution after they lose at jury trial or the court undercuts their offer by sentencing to less or substantially less after a jury trial. I recognize that these last two points assume competent counsel for both sides.

Posted by: David | Sep 6, 2010 4:28:35 PM

The defense offers the location of the body of the little girl the customer tortured, raped, over several days, and throttled for pleasure in exchange for dropping the death penalty. The prosecution declines the offer. During the trial, the defense mounts a lengthy presentation of the theory the parents abused the girl and buried her to cover their tracks. The defense is putting the parents through a wringerThe judge has participated in plea bargaining. What is his duty regarding secrecy and the exclusion of the discussion from trial? Is there anyway to remove the plea offer from his nightmares every night?

Posted by: Supremacy Claus | Sep 7, 2010 8:43:28 AM

The ultimate anchor: the "advisory" federal sentencing guidelines.

Posted by: defense lawyer | Sep 7, 2010 10:52:39 AM

Jardinero1,

One thing that does balance things a bit in regard to the European model is that someone does not face charges in Europe (at least in theory) based upon a showing of probable cause. The need to prove one's innocence thus is only supposed to kick in after the state has already met the burden for conviction.

Posted by: Soronel HaetirH | Sep 7, 2010 12:01:51 PM

If judges participated in plea discussions they'd learn important things about cases that they ought to know...but sometimes don't.

Take for instance the white-collar defendant who initially declared his intention to go to trial with the defense of counsel. His lawyer had told him what he was doing was OK.

Prosecutors responded by indicating he'd be facing 150 counts at trial instead of two as part of a plea deal. They also declared their intention to prosecute the def's business attorney as a participant in what they characterized as an "organized-crime scheme" (which BTW they never ended up doing). It was also made clear that informing the court he'd "had counsel" in his business dealings would preclude any subsequent downward departure for "accepting responsibility". The upshot therefore was he'd be facing a plausible sentence of 30-plus years if convicted).

Once his criminal attorney advised him going to trial would cost upwards of $240,000 (he'd already paid $40,000 to handle pre-trial negotiations)...and that prosecutors would offer better deals to co-defendants for damning testimony against him, the game was over. A plea agreement was signed. Prosecutors won, but I don't believe justice did.

Ultimately he and two co-defendants were sentenced to six months home detention, probation and, as it turned out, $2 million restitution orders (MVRA)...in a case prosecutors had billed as a $17 million organized crime operation involving 17 individuals and business entities.

Only the three "little fish" were convicted. The big fish were squeezed and offered a series of progressively more lenient plea agreements, but none was subsequently prosecuted.

It turned out to a big splashy-headlines bluff. Had the judge been in on plea negotiations who knows whether the case would even have progressed to plea negotiations.

Posted by: John K | Sep 7, 2010 12:21:38 PM

David: Thanks for the comments. I will be working on a future article dealing with charging reform based upon the anchoring effect. Also, I think that it is a good question what the "correct" punishment is for a given crime. My article doesn't attempt to answer that question. It just argues that the vast majority of defendants have their plea bargaining decisions influenced by a cognitive bias.

Supremacy Claus and JohnK: The question of what to do with the judge who participates in plea discussions is an interesting one. Connecticut allows judicial participation in plea discussions, and,
if the sides do not reach a plea agreement after plea discussions, Connecticut case law provides that “a judge who was not involved in the plea negotiations and is unaware of the plea terms offered at pre-trial should conduct the trial and post-trial sentencing phase.” Moreover, “motions to suppress go to a trial judge different from the judge who handle[d] the negotiations.”

I don't know if this is the best solution, but it is an interesting one.

Posted by: Colin Miller | Sep 7, 2010 1:34:23 PM

David, I believe you but I am kind of incredulous that any judge could do anything about it. What's he going to do, tell all the defendents and their counsel they don't have the right to a trial by jury?

Posted by: Jardinero1 | Sep 7, 2010 4:49:56 PM

Mr. Miller, in my view the due process clause requires that a judge who is made aware of the various pretrial plea offers must not be the ultimate sentencing judge. I've filed several motions related to this issue. No judge is ever going to sentence less, in the event of conviction, than what the judge thought was a reasonable plea. Therefore, a floor of sentences is set if the same judge helps negotiate a plea, which fails, and then the case goes to trial.

bruce cunningham

Posted by: bruce cunningham | Sep 7, 2010 4:51:52 PM

Bruce, I think think that this is certainly a compelling point and the main reason why most jurisdictions do not allow judicial participation in plea discussion. That said, it seems to me that the Connecticut approach resolves that issue, and I hope that other jurisdictions consider adopting it.

Posted by: Colin Miller | Sep 7, 2010 4:59:56 PM

Bruce and Colin: Beyond the learning of offers by the judge, it is certain, the judge has learned offered facts, which would have been otherwise, withheld in the adversarial process. In Connecticut, is there a formal rule that a plea participating judge may not communicate ex parte with the trial judge, with penalties, hopefully against the judges, and not some exclusionary rule that has the defendant released?

Posted by: Supremacy Claus | Sep 7, 2010 8:21:49 PM

SC i have to agree with you on this one!


"The defense offers the location of the body of the little girl the customer tortured, raped, over several days, and throttled for pleasure in exchange for dropping the death penalty. The prosecution declines the offer. During the trial, the defense mounts a lengthy presentation of the theory the parents abused the girl and buried her to cover their tracks. The defense is putting the parents through a wringerThe judge has participated in plea bargaining. What is his duty regarding secrecy and the exclusion of the discussion from trial? Is there anyway to remove the plea offer from his nightmares every night?

Posted by: Supremacy Claus | Sep 7, 2010 8:43:28 AM"

Sorry in my book this is PERJURY! and both the lawyer who allowed it and the defendant who tries it should be through!

even if plea agreement negotiations are private the lawyer still KNOWS HIS CLIENT LIED! sorry it's a non-starter. The judge should stop the trial and have the lawyer arrested and charged and the defendant charged with a NEW CRIME to go with the old one. Even if the total information of what he said wasn't brought forward...it could STILL be USED to prove he LIED on the stand.

Posted by: rodsmith | Sep 8, 2010 1:51:14 AM

Rod: This is from a real California case. Rather than sanctions, the defense attorneys were lauded by the profession for their zealous advocacy. The public felt as you do, disgusted with this profession.

The jury handed down the death penalty, but in California, if you know what I mean. In the real case, the judge did not know the content of the refused plea offer. If he had, how would he live with himself, or even offer the defendant a fair trial?

Posted by: Supremacy Claus | Sep 8, 2010 6:56:53 AM

Supremacy Claus,

The article by Professor Turner that I cite in the study states as follows:

The rule requiring a judge to recuse herself after participating in plea negotiations is also seen as key to the legitimacy of the system. [FN316] One interviewee worried that the rule is occasionally breached in practice, whereby a pretrial judge may lobby the sentencing judge on the same case to give the defendant a harsher sentence for rejecting the pretrial offer. [FN317] According to the same interviewee, although such conduct occurs rarely, it sets the tone for the negotiations and undermines the credibility of the process. [FN318] Other interviewees contested that possibility. [FN319] One prosecutor pointed out that, in about one-fourth of cases, post-trial sentences are the same as or lower than the pre-trial offers, which suggests that judges are not punishing defendants for rejecting plea offers. [FN320]

So, it looks like there is no ban, but there is a question as to whether and how often it happens.

Posted by: Colin Miller | Sep 8, 2010 10:51:27 AM

personally i think it's time to allow voluntary use of truth serium in the american court system. you say you didnt' do it. fine you get a shot and in 5 mins we WILL know if you did or didnt'....if you didn't yoru free and if there is any evidence at all the da fudged the evidence THEY ARRE ON TRIAL. if you did...trial over time for sentencing.

Posted by: rodsmith | Sep 9, 2010 1:47:58 AM

Rod: Truth serum is usually a sedative. It makes the person free of anxiety, and feeling nothing as people are yelling and threatening him.

If you ever have to interrogate someone, I suggest an alternative, a Starbucks Vente. You will not be able to shut the person up.

Posted by: Supremacy Claus | Sep 9, 2010 11:57:56 PM

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