When I was a defense attorney I couldn’t help but notice how sentences for similar crimes and similar defendants were often different in different counties regardless of judges. There appeared to be different cultures of understanding among counties as to what level of punishment was appropriate for different crimes. Prosecutors in some counties recommend more punitive sentences than prosecutors in other counties for similar crimes and similar defendants. Judges, keying off of the harsher recommendations, punished more severely than judges in other counties for similar crimes for similar defendants.
But even within counties, I also believed that punishment would often vary depending on the prosecutor’s recommendation. The prosecutor’s recommendation was important. If I had a prosecutor that would recommend a lenient sentence, then it was more likely (but not certain) that the defendant would receive a comparatively lenient sentence.
Why is a prosecutor’s recommendation a factor in a judge’s sentencing decision? First, a good prosecutor will use the same sentencing factors that a judge uses to recommend the sentence. Both the prosecutor and the judge may independently arrive at the conclusion that a certain sentence is fair. Secondly, the sentencing judge may be giving some deference to a plea agreement between the parties, so that the plea bargaining process maintains some vitality.
But I believe that what is also occurring is part of the psychological phenomenon called anchoring and adjustment. The prosecutor’s recommendation and the defense attorney’s recommendation operate as an “anchor” in the judge’s sentencing decision. An “anchor” is a starting value from which a decision is made.[i]
In one study, real estate agents were given all the information that agents required for an appraisal of a residential property, including such things as comparables, etc.. The agents were all allowed to view the entire property, and were asked to appraise the property to ascertain a listing price. The only difference in the appraisal packets was that there were different listing prices written on one of the sheets given to the agents. Some listing prices were high and some were low. The listing price was not a variable that should be used in the appraisal of the property, as the appraisal was to set the listing price, and not the reverse.
The results of the research showed that those agents who had packets with higher listing prices appraised the property at higher prices than those with lower listing prices. The agent’s appraisals became anchored by whatever listing price they had seen.[ii]
This anchoring effect is present even when people estimate an answer. One study had participants in front of a “wheel of fortune” and spun the wheel. If the wheel landed on a 65, the experimenter asked, “Is the percentage of African countries in the U.N. greater or less than 65%? The participants answers and then is asked: “Exactly what percentage of African countries are in the U.N.”
Another, participant spun the wheel and it landed on 10. The experimenter asked: “Is the percentage of African countries in the U.N. greater or less than 10%? The participants answered and then was asked: “Exactly what percentage of African countries are in the U.N.” The experimenters found that the answers to the second question were highly correlated to the percentage used in the first question. Subjects that had a high percentage in the first question, provided a high answer on the second question. Subjects that had a low percentage in the first question, provided a low answer on the second. The subjects had been anchored by the first number.[iii]
Research has shown that anchoring effect may also affect the way juries decide criminal verdicts which involve lesser included offenses. Researchers evaluated the order of questions on a criminal verdict using mock jurors. The research showed that verdicts that have the jury consider the most serious offense first and then the lesser included offenses, like those used in Wisconsin, would result in a higher probability of a conviction on the most serious offense than if the verdict would have the lesser included offenses listed first, and then proceed up to the more serious offense.[iv] This research, which I don’t know has been replicated, certainly raises serious and interesting questions about protecting against anchoring effects in jury decisions.
[i] Plous, Scott, 1993, The Psychology of Judgment and Decision Making, McGraw Hill, p. 145.
[ii] Northcraft, George B., and Margaret A Neale, (1987), Experts, Ameteurs, and Real Estate: An Anchoring and Adjustment Perspective on Property Pricing Decisions, Organizational Behavior and Human Decision Processes, 39, 84-97.
[iii] Plous (1993) above p. 145
[iv] Greenberg, Jeff, Kipling D. Williams and Mary K. O’Brien, (1986) Personality and Social Psychology Bulletin, Vol. 12, No. 1 41-50.
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