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Editor: Colin Miller
Univ. of South Carolina School of Law

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Sunday, September 5, 2010

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

Today, I posted my new article, Anchors Away: Why the Anchoring Effect Suggests that Judges Should Be Able to Participate in Plea Discussions, on SSRN. 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.

This completes a summer of plea bargaining research for me, with one of my other projects being my recent article, Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/09/my-new-article-anchors-away-why-the-anchoring-effect-suggests-that-judges-should-be-able-to-particip.html

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Comments

If the anchoring effect is the problem, wouldn't it be solved -- or at least countered -- by the defense attorney making the first offer? (Perhaps you talk about this -- forgive me for not reading the article.)

Posted by: Orin Kerr | Sep 13, 2010 9:41:30 AM

Orin, thanks for the comment. Here are a couple of points that the article makes. First, it is the prosecutor who almost always makes the first offer, with Debra Emmelman finding in her 1984-1988 study that public defenders (who represent the vast majority of criminal defendants) taking a passive, reactive posture. Indeed a recent article noted that in a roomful of public defenders from across the country, not a single one reported even thinking about making the opening offer. It seems to me that there are systemic issues at play here and that simply telling defense lawyers that they should make the opening offer wouldn't necessarily work.

Let's assume, though, that we could shift the thinking of defense lawyers and that prosecutors would allow them to present opening offers. If defense counsel now made the opening offer, it would presumably be a low offer, and the prosecutor would anchor on that offer. The result would presumably be that the plea agreement reached would be too favorable to the defendant, which would produce an undesirable approach in the other direction.

My main goal in the article is to argue that judicial participation in plea discussions would be favorable to both sides and that more jurisdictions should follow the lead of states like Florida and Connecticut, which allow for judicial participation (with Professor Jenia Turner finding that prosecutors and defense lawyers are both happy with the results). I think that judicial participation achieves that goal, both based upon the anchoring effect and other aspects of the plea bargaining process.

Posted by: Colin Miller | Sep 13, 2010 2:24:19 PM

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