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October 12, 2014

"Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw"

The title of this post is the title of this intriguing new paper by U.S. District Judge Mark Bennett. Here is the abstract:

Cognitive "anchoring effect" bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic.  It is a cognitive shortcut that has a strong tendency to undermine judgments by "anchoring" a judgment to an earlier disclosed number, the anchor.  Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges.  The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random.

Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005).  Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed.  This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences.  This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range.

This Article offers a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress.  It simply requires rearranging the numerical anchoring information in the presentence report and adding additional relevant numerical information to counteract the anchoring effect of the Guidelines.  If federal district court judges are educated about the effect of cognitive anchoring and their own bias-based blind spots to it — their improved awareness can only enhance the fairness of sentencing.

October 12, 2014 at 09:51 PM | Permalink


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I have often argued in the Comments:

1) A course in Critical Thinking should become a Pre-law course requirement, as organic chemistry is a pre-med requirement.

2) Defense lawyers should get the list of dozens of cognitive biases in Wikipedia. If any is in effect against their client, it should become a motion to end the tribunal, to mitigate against it, or to reserve it on appeal.

3) Any demonstrable cognitive bias violates Fifth Amendment Procedural Due Process right to a fair hearing, as any -ism might (racism, sexism). I have never seen any defense or appellate lawyer use this argument. I would appreciate it if any lawyer aware of such a motion would provide a citation.

4) The violation of the principles of critical thinking are not only lawless, unconstitutional, they damage the reputation of the criminal justice system, and should be considered a deviation from professional standards of due care, subject to tort liability for both defense and prosecutor. The prosecutor may have more duties to the defendant than a fiduciary such as a defense lawyer. These are enumerated in statutes, covering the Rules of Conduct, the Rules of Evidence, the Rules of Criminal Procedure. Because they come from statutes, all deviations are per se negligence, and should be subject to exemplary damages. To deter.

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Posted by: Bipasha | Oct 16, 2014 1:28:37 AM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB