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.
Could and should vehicle crash deaths and costs be deterred by tougher punishments?Regular readers know that, ever the utilitarian punishment fan, I have long thought that the many significant harms that result from drunk driving could and should justify a tougher criminal justice approach to this seemingly deterrable and very costly crime (see some of the posts linked below). Now, this notable new article in my local Columbus Dispatch, which is headlined "CDC: Beef up traffic laws," has me wondering if we should get tougher on all driving crimes, not just drunk driving. Here is the factual background concerning some of the (very preventable?) costs that may result from our unwillingness to be tough enough with out driving rules and regulations:
Traffic deaths and injuries are a preventable scourge that cost the nation about $99 billion a year in medical bills and lost productivity, according to the U.S. Centers for Disease Control and Prevention.
That's about $500 for each licensed driver in America, according to a study by the CDC's National Center for Injury Prevention and Control. Researchers tallied the costs nationally using hospital, insurance and other data from 2005, when there were 3.7 million deaths and injuries from crashes.
They hope the cost information will persuade states and communities to take action to prevent traffic crashes, said Rebecca Naumann, a CDC epidemiologist and lead researcher on the study. Action would include requiring motorcycle riders to wear helmets, allowing police to pull drivers over simply if they're not wearing a seat belt and checking for drunken driving at checkpoints....
Ohio has put in place several strategies to reduce traffic deaths and injuries that the CDC mentioned in its study, including graduated driver's licensing for teens. Deaths and injuries from crashes among 15- to 19-year-olds cost $11.2 billion, the CDC study found....There's also political resistance to motorcycle helmet laws, red-light cameras and primary seat-belt laws, which allow an officer to stop a driver just for not buckling up. "People clamor for drugs that will treat serious diseases, but with motor vehicle crashes, there's often resistance," [Russ] Rader [of the Insurance Institute of Highway Safety] said. "There is reluctance on the part of politicians to tackle some of these things because of the vocal opponents they would have to cross to get it accomplished."
One thing that's not mentioned in the CDC study is bans on texting or cell-phone use. The insurance institute's studies of states with and without bans shows no evidence that they cut crashes, Rader said. "We want to know whether the laws being passed are reducing crashes, and the cell-phone laws are not doing that," he said.
Critically, I do not want or mean to suggest that imprisonment is the ideal or even a sound way to toughen punishment for risky driving behaviors. Supersized fines (perhaps in the day-fine model used in much of Europe) or shaming sanctions or community service obligations could well be much more effective in encouraging the average driver to stay sober, slow down, buckle up and save all of us $99 billion that crashes cost all of us each year.
As my 1L students discover each year, I think driving laws and punishments provide an effective window into whether one is drawn to more utilitarian or more retributivist approaches to sentencing law and policy. The costs stressed by the CBC suggest that we could improve society greatly by being (creatively) tougher on those who engage in what we know to be risky driving behaviors. But to achieve such a utilitarian bang for our buck, we will surely risk punishing some (many?) drivers more than some (many?) persons might think these drivers deserve.
Personally, in this particular (and I think particularly important) context, I would generally rather run the risk of over-punishment of some risky drivers (including myself) than run the risk of more risky drivers on the roads threatening my friends and family. But, as suggested above, if/when the form of "over -punishment" in this setting were to be significant jail/prison time (which is itself economically and socially costly), the utilitarian (and my normative) calculus could come out differently.
Some related posts on sentencing drunk drivers:
- Effective commentary complaining about undue leniency for drunk drivers
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- Is capital punishment for drunk driving morally required?
- More examples of undue leniency shown to repeat drunk drivers
- "Some Coloradans drive until they kill"
UPDATE on 9/7: Though the discussion in the comments to this post have been going hot and heavy, I figured this amusing local news story from Ohio could give it some additional juice: "Police: Driver distracted by sex toy." Here are the essentials:
An Elmwood Place police officer who stopped a car because it had illegally tinted windows received a bit of a shock when he looked inside.
Officer Ross Gilbert said the driver, Colondra Hamilton, a 36-year-old Downtown resident, was sitting with her pants unzipped and a sex toy in her lap. He said Hamilton told him she was using the toy while watching a sex video on a laptop computer that a passenger in the front seat held up so she could see it.
Gilbert charged her with "driving with inappropriate alertness" and having illegal tinted windows, according to the traffic ticket.
Is blogging now officially a "mainstream medium"?The question in the title of this post is inspired by this new piece in The National Law Journal, which is headlined "Law School Report: A look at professors who have made blogging a mainstream medium." I am flattered and honored to be included among the impressive list of lawprof bloggers profiled by Leigh Jones in the article, which starts this way:
Somewhere between fusty law treatises and Twitter lie law blogs, many of them written by the top legal scholars in the country. Just five years ago, the notion of law professors delivering quick and cogent commentary to the masses — with the opportunity for instant feedback, no less — was a novel concept. Today, it is rare for law schools not to have at least two or three professors on faculty who regularly tap away at their blogs, often with their morning cup of coffee or after they've put the kids to bed at night.
The National Law Journalhas profiled some of the pioneers in law blogging. Their online endeavors keep readers current on topics ranging from Sixth Amendment rights to tax law, from faculty appointments to securities fraud. Their work has given legal scholars a greater voice in the public forum and brought recognition to the schools they represent.
I ask the question in the title of this post because I am wondering if I now need to consider myself part of the MSM. To quote a great Seinfeld episode, "Not that there is anything wrong with that."
September 5, 2010
"What Might Retributive Justice Be?"The title of this post is a question I often enjoy asking my students. It is also the title of this new piece from Professor Dan Markel available via SSRN. Here is the abstract:
There are many conceptions of retributive justice. This paper is designed to articulate and defend a particular kind of retributive justice, one that I call the “Confrontational Conception of Retributivism,” or the CCR. This particular conception is political, not comprehensive, and thus is interested in defending the claim that *state* punishment is, as a general matter, warranted as a response to legal wrongdoing. Accordingly, the focus is on the legal manifestations of punishment, particularly within a liberal democracy; it is not concerned with justifying punishment in other spheres such as parent-child relations. Related to this account of state punishment is that its contours should be devised principally ex ante and that such punishment should be distributed through actors upon whom there are checks with respect to their remaining discretion.
The paper here is a chapter in a volume forthcoming from Oxford including essays on the theory and practice of retributive justice. My paper in particular is an effort at restating, clarifying and correcting some of my prior work in retributive justice theory. It is, relatively speaking, reasonably short and might serve as a useful introduction for students and scholars wading into contemporary retributive justice theory.
Tough questions about what's next after the Keith capital commutation in OhioAndrew Cohen has an interesting follow-up commentary to this past week's commutation by the Governor of Ohio of the death sentence that had been facing Kevin Keith despite his claims of innocence (basics here). The commentary is titled "Death Row Reprieve: Does Ohio Also Owe Kevin Keith a New Trial?", and here is one of many interesting excerpts:
Convicted murderer Kevin Keith could look at the week's dramatic developments in his life in one of two ways. He could consider himself very lucky that Ohio Gov. Ted Strickland commuted his capital sentence to life in prison without parole. Or he could consider himself still accursed that he'll likely remain in prison anyway for the rest of his natural days despite his claim that he did not murder two adults and a four-year-old child -- family members of an alleged police drug informant -- in 1994.
How do you see the glass, Mr. Keith, now that the very government that incarcerates you has expressed doubt about the evidence which put you away? Is it half-full or half-empty?...
There have been 249 capital commutations in the United States since 1976, the year the Supreme Court gave the death penalty back to the states as a sentencing option. There have been 1224 executions across the country during that time. As of Jan. 1, 2010, there were 3,268 men and women on death row in the 35 states (and federal jurisdictions) which have capital punishment. Since 1973, according to the Death Penalty Information Center, "130 people have been released from death row with evidence of their innocence." Many of these releases are the result of DNA mismatches -- an issue not present in Keith's case....
The reasons Keith's sentence was reduced relate directly to the strength of the prosecution's trial evidence against him -- and are material enough for any reasonable person to doubt whether he would have been convicted had these facts come before the original judge and jury. It is now beyond contention that the rot here is in the core of the apple and not its skin. Just because the government can't go back and re-do every bad conviction doesn't mean it shouldn't go back and re-do the ones it can.
With the first days of the rest of his life, Keith now will have time to explore all of these topics as his lawyers continue to push for a substantive hearing or new trial. He'll have time to read how poorly it could have gone for him had he been a prisoner seeking clemency in Texas under then-Gov. George W. Bush and his counsel, Alberto Gonzales. He'll have time to read about how capital punishment may be on the wane in North Carolina after revelations there about the state crime lab's dishonorable work. Or perhaps about how the capital punishment system in Pennsylvania is a mess.
Alas, there is no shortage of literature out there describing all sorts of problems in and with capital cases. Makes you wonder why commutations like the one Keith was gracefully given this past week are more rare than executions, doesn't it?